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)
The bottom line
#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
#Executive summary
#Key legal issues
#Substitution of a deceased appellant by his co-administrator
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
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.
Single Judge's jurisdiction over new evidence and supplementary records
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
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.
Leave to amend the Memorandum of Appeal after inordinate delay
Refused; the belated additional ground would defeat the principle of expedition and prejudice the respondents
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.
Legal principles established
#- 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
#- 1.The applicant, Godwin Wachira Gichuhi, be substituted for Julius Gichuki Gichuhi as appellant in this appeal
- 2.The applicant's application for leave to amend and serve an amended memorandum of appeal is hereby dismissed
- 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.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.The costs of this application be costs in the appeal
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.