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Court of AppealPartially AllowedCivil Appeal (application) arising from High Court Civil Case No. 880 of 1977 as consolidated with High Court Civil Case No. 908 of 1977 – Notice of Motion dated 23rd July 2021· [2021] KECA 350 (KLR)

Julius Gichuki Gichuhi (By substitution and being the Legal Representative of the Estate of the Late Gichuhi Kimira(Deceased) & another v Kimotho & 2 others (Civil Appeal 326 of 2018) [2021] KECA 350 (KLR)

Court of Appeal of Kenya
17 December 2021
1,730 words in judgment
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The bottom line

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Kenya's Court of Appeal allowed a personal representative to replace a deceased appellant but blocked a late appeal amendment and sent the new-evidence request to a full bench.

What this practically means

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Executive summary

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This is a ruling by a single Judge of Appeal (Laibuta, JA) on a Notice of Motion dated 23rd July 2021 by Godwin Wachira Gichuhi, co-administrator of the estate of the deceased appellant Gichuhi Kimira, in a long-running land dispute originating in consolidated High Court Civil Cases Nos. 880 and 908 of 1977. The applicant sought substitution for the deceased appellant Julius Gichuki Gichuhi, leave to amend the Memorandum of Appeal, leave to file a supplementary record of appeal (deeming one filed on 12th April 2019 as duly filed), and leave to introduce new evidence concerning developments that arose while the ruling under appeal was pending. The respondents opposed, citing inordinate delay and non-compliance with Rule 29. The court held that a single Judge has no jurisdiction to admit new evidence; such applications, and any supplementary record introducing documents not adduced at trial, are for a 3-Judge bench. Substitution of the personal representative was allowed as of right under section 82(1)(a) of the Law of Succession Act. Leave to amend was refused because of inordinate delay and prejudice to the respondents, consistent with the overriding objective in section 3A of the Appellate Jurisdiction Act. The Motion was referred to the Deputy Registrar for the Rule 88 supplementary-record application and the new-evidence question listed before a full bench on priority. Costs were made costs in the appeal.

Key legal issues

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01

Substitution of a deceased appellant by his co-administrator

Holding

Allowed as of right; the personal representative with a full Grant is empowered to enforce causes of action surviving the deceased and the court does not inquire into the reasons for substitution

Reasoning

The applicant held a Grant of Letters Administration Intestate to the estate of the deceased appellant, rectified on 11th December 2019. Section 82(1)(a) of the Law of Succession Act empowers a personal representative to enforce causes of action surviving the deceased. Substitution therefore follows as of right, though the court observed it was not critical to the appeal, and no inquiry into the justification is required.

p. 3
02

Single Judge's jurisdiction over new evidence and supplementary records

Holding

A single Judge cannot admit new evidence or determine a supplementary record introducing documents not adduced at trial; both fall to a 3-Judge bench; otherwise supplementary record leave lies to the Deputy Registrar under Rule 88

Reasoning

The court drew a line between a supplementary record confined to documents adduced before the trial court (Deputy Registrar, Rule 88) and material introducing new evidence (3-Judge bench, Rule 29(1)(b)). It likewise declined to determine the request to introduce new developments pending the impugned ruling, deferring both to the full bench.

p. 3
03

Leave to amend the Memorandum of Appeal after inordinate delay

Holding

Refused; the belated additional ground would defeat the principle of expedition and prejudice the respondents

Reasoning

The proposed additional ground could have been raised more than four years earlier in response to a Notice of Motion dated 26th September 2017. Neither that Motion, its reply, nor the impugned Ruling were exhibited to allow the court to assess the amendment's import. The overriding objective of just, expeditious, proportionate and affordable resolution weighed against the amendment.

p. 4

Legal principles established

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  • An application under Rule 88 for leave to file a supplementary record of appeal is made to the Deputy Registrar, provided it does not seek to introduce new evidence
  • A single Judge of the Court of Appeal has no jurisdiction to admit new evidence on appeal; that application is reserved to a full bench of three Judges under Rule 29
  • Substitution of a personal representative for a deceased appellant is as of right under section 82(1)(a) of the Law of Succession Act, and the court will not inquire into the reasons for the substitution
  • The discretionary power to allow amendment of a memorandum of appeal must be exercised judiciously, and inordinate delay that prejudices respondents outweighs the amendment

Court orders

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  1. 1.The applicant, Godwin Wachira Gichuhi, be substituted for Julius Gichuki Gichuhi as appellant in this appeal
  2. 2.The applicant's application for leave to amend and serve an amended memorandum of appeal is hereby dismissed
  3. 3.The applicant's Motion dated 23rd July 2021 be placed before the Deputy Registrar for determination of his application under Rule 88 for leave to file a Supplementary Record of Appeal
  4. 4.The matter be listed before a 3-Judge bench on a priority basis for hearing and determination of the appellant's application for leave to introduce new evidence pursuant to Rule 29(1)(b)
  5. 5.The costs of this application be costs in the appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 92(3) and (4)
  • Court of Appeal RulesRule 29 and Rule 29(1)(b)
  • Court of Appeal RulesRule 88
  • Court of Appeal RulesRule 44
  • Law of Succession Act, Revised 2012Section 82(1)(a)
  • Appellate Jurisdiction Act (Cap. 9)Section 3A(1)
  • Appellate Jurisdiction Act (Cap. 9)Section 3B(1)(a)

Cases cited (4)

  • Zacharia Okoth Obando v Edward Akongo Oyugi and 2 Others
    [2014] eKLR
  • Mungai Njoroge and Another v Kiarie Njoroge and Another
    [2019] eKLR
  • Uchumi Supermarket Limited and Another v Sidhi Investments Ltd
    [2018] eKLR
  • Kyalo v Bayusuf Brothers Ltd
    [1982] eKLR
On appeal from
High Court of Kenya
Ruling in the consolidated High Court Civil Case No. 880 of 1977 and No. 908 of 1977
Jurisdiction invoked
Rule 92(3) and (4) of the Court of Appeal Rules; sections 3A(1) and 3B(1)(a) of the Appellate Jurisdiction Act (Cap. 9); Rule 44 and Rule 88 of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Julius Gichuki Gichuhi (By substitution and being the Legal Representative of the Estate of the Late Gichuhi Kimira(Deceased) & another v Kimotho & 2 others (Civil Appeal 326 of 2018) [2021] KECA 350 (KLR)", Case Analysis (2021). Civil Appeal (application) arising from High Court Civil Case No. 880 of 1977 as consolidated with High Court Civil Case No. 908 of 1977 – Notice of Motion dated 23rd July 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/350/eng@2021-12-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.