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Court of AppealDismissedCivil Appeal No 130 of 2017· [2019] KECA 910 (KLR)

Mary Kiunga Ikiome v H Young Company Ltd [2019] KECA 910 (KLR)

Court of Appeal of Kenya
6 February 2019
2,560 words in judgment
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The bottom line

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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

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Executive summary

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This was a first appeal from the judgment of Gikonyo, J. (High Court, Meru, 7th November 2016) dismissing the appellant's application for review of a ruling of Makau, J. of 23rd October 2014. The underlying suit, filed by M'rithara M'ikiome in October 2010 against H. Young Company Ltd for trespass, abated by operation of law on 10th August 2013, one year after the plaintiff's death, because no application was made under Order 24 rule 3(1) of the Civil Procedure Rules within that year. Makau, J. declined the appellant's application for substitution and revival because the limited grant of letters of administration ad litem was not annexed to the application, and struck it out for want of capacity. The appellant then sought review before Gikonyo, J., contending that the dismissal rested on a mere typographical error in the succession cause number. The Court of Appeal rejected this characterisation: the ruling turned on the missing grant, which was undisputed, so there was no error apparent on the face of the record. Further, the finding that the suit had abated was never appealed, rendering the orders sought superfluous. Invoking the Supreme Court's decision in Raila Odinga v IEBC, the court held that Article 159(2)(d) does not excuse non-compliance with procedure. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

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

Holding

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

Reasoning

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.

p. 3
02

Effect of abatement of the suit on the relief sought

Holding

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

Reasoning

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.

p. 4
03

Whether Article 159(2)(d) of the Constitution could cure the appellant's procedural failures

Holding

No - the provision does not oust the obligation of litigants to comply with procedural requirements

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 Rule 3(2)
  • Civil Procedure RulesOrder 24 Rule 7(2)
  • Civil Procedure RulesOrder 45(1) & 51(1)
  • Civil Procedure ActSections 3 & 3A
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 159(a)

Cases cited (3)

  • SELLE V. ASSOCIATED MOTOR BOAT CO. [1968] EA 123
    [1968] EA 123
  • Abdul Hameed Saif –vs- Ali Mohamed Sholan (1955)22 EACA 270
    (1955) 22 EACA 270
  • RAILA ODINGA IEBC & OTHERS [2013] eKLR
    [2013] eKLR
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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.