Mary Kiunga Ikiome v H Young Company Ltd [2019] KECA 910 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that Article 159(2)(d) does not excuse missing paperwork: the appellant's suit had died with the plaintiff, and her appeal collapsed.
What this practically means
#Executive summary
#Key legal issues
#Whether a typographical error in the Succession Cause number constituted an error apparent on the face of the record for purposes of review under Order 45
No - the refusal by Makau, J. was based not on the wrong cause number but on the failure to annex the letters of administration, which was not an error apparent on the face of the record
The court held that the appellant mischaracterised the basis of Makau, J.'s ruling. The learned Judge had dismissed the substitution application because the limited grant of letters of administration ad litem was not annexed, not because of the typographical error in the succession cause number. Since it was undisputed that the letters of administration were not annexed, there was no error or mistake apparent on the face of the record to warrant review.
Effect of abatement of the suit on the relief sought
The plaintiff's suit abated by operation of law on 10th August, 2013 and the appellant never appealed against that finding, so the orders sought on appeal were superfluous
The deceased plaintiff died on 10th August, 2012 and, no application having been made within one year, the suit abated on 10th August, 2013. Makau, J. so found and his orders were not challenged on appeal. Consequently, by the time the matter came before Gikonyo, J. there was no suit pending, and the orders the appellant sought in the appeal were of no practical effect.
Whether Article 159(2)(d) of the Constitution could cure the appellant's procedural failures
No - the provision does not oust the obligation of litigants to comply with procedural requirements
The appellant invoked Article 159(2)(d) in apparent realisation of the futility of the orders sought. The court, adopting the Supreme Court's decision in Raila Odinga v IEBC & Others [2013], held that the provision merely directs courts not to pay undue attention to procedural requirements at the expense of substantive justice; it was never intended to relieve litigants of the obligation to comply with procedure. The appellant's failure to annex the grant and to appeal the abatement ruling could not be cured by the provision.
Legal principles established
#- Article 159(2)(d) of the Constitution (overriding objective of justice without undue regard to technicalities) does not relieve litigants of the obligation to comply with procedural requirements
- An applicant seeking revival of an abated suit bears the burden of proving sufficient cause preventing continuation of the suit
- A suit by a deceased plaintiff abates by operation of law one year after death where no application is made under Order 24 rule 3(1) of the Civil Procedure Rules
- On a first appeal, the Court of Appeal reconsiders and re-evaluates the evidence and draws its own conclusions, while making due allowance for not having seen or heard the witnesses
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal awarded to the respondent
- On appeal from
- High Court of Kenya at Meru
- Meru ELC Case No 143 'A' of 2010
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Civil Procedure Act (appeal as of right from the High Court; no specific constitutional provision cited)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Mary Kiunga Ikiome v H Young Company Ltd [2019] KECA 910 (KLR)", Case Analysis (2019). Civil Appeal No 130 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/910/eng@2019-02-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.