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Court of AppealDismissedCivil Application No. 1 of 2013· [2021] KECA 523 (KLR)

Edward Njagi Mugo & another v Stephen Muna Mugo & 2 others; James Ndegwa & another (Intrested Parties) [2021] KECA 523 (KLR)

Court of Appeal of Kenya
4 June 2021
FSF. Sichaale
1,533 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed only a deceased person's legal representative can replace them in a case, and land buyers cannot step in.

What this practically means

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Executive summary

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This is a single-judge (in chambers) ruling of the Court of Appeal at Nyeri by Sichale, JA, on a motion dated 8th April 2019 by Edward Njagi Mugo and Gideon Kiura Mugo, appellants in Embu Civil Appeal No. 27 of 2000. The applicants sought enlargement of time to substitute the three deceased respondents, reinstatement or revival of the appeal, and substitution of the interested parties - James Ndegwa and Anthony Waweru Ndambiri, the current registered proprietors of one of the suit parcels, Baragwi/Thumaita/1587 - for the deceased respondents. The application was brought under Order 24 Rules 3(2), 4 and 7(2) of the Civil Procedure Rules, sections 3A and 3B of the Appellate Jurisdiction Act and Rules 42(1) and 43(1) of the Court of Appeal Rules, 2010. The interested parties opposed, contending that only a legal representative of a deceased party may be substituted and that the applicants, being close family members of the deceased, had offered no explanation for the delay, the respondents having died between 2014 and 2017 while the application was filed in 2019. The court held that only a legal representative of a deceased person can be made a party under Order 24 Rule 3(2); the interested parties, having purchased the land from a son of one deceased respondent, are not legal representatives of the estates, and their proprietorship of the suit land cannot found substitution. Relying on the Supreme Court's decision in Daniel Kimani Njihia, the court also noted that the applicants had failed to invoke Rule 4 governing enlargement of time. The motion was dismissed in its entirety with no order as to costs.

Key legal issues

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01

Whether a registered proprietor of land forming part of a deceased party's estate may be substituted for the deceased party on appeal

Holding

No. Substitution under Order 24 Rule 3(2) is confined to the legal representative of the deceased; the interested parties, as purchasers from a beneficiary, are not legal representatives and cannot be substituted.

Reasoning

The court examined Order 24 Rule 3(2), which requires that the legal representative of the deceased be made a party, with the suit abating where no application is made within one year. The applicants' only basis was that the interested parties were current registered owners of Baragwi/Thumaita/1587, having purchased from a son of a deceased respondent who acquired the land through a succession cause. The court held that such proprietorship does not make them legal representatives, so substitution could not lie.

p. 2
02

The consequence of invoking the wrong legal provisions in an application for enlargement of time and substitution

Holding

The applicants invoked Order 24 Rule 3(2) but failed to invoke Rule 4 of the Court's Rules, which governs enlargement of time; such omission is not a mere technicality curable under Article 159.

Reasoning

Relying on the Supreme Court's decision in Daniel Kimani Njihia v. Francis Mwangi Kimani & Another, the court reiterated that litigants must be clear as to the terms of the jurisdiction they invoke and cite the correct provision. Although the court went on to consider Order 24 Rule 3(2) anyway, the mis-invocation, combined with the lack of merit on substitution, led to dismissal of the motion.

p. 2

Legal principles established

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  • Only a legal representative of a deceased party can be substituted and made a party to a suit under Order 24 Rule 3(2) of the Civil Procedure Rules; a purchaser or registered proprietor of estate land who is not a legal representative cannot be substituted
  • Litigants must invoke the correct constitutional or statutory provision; failure to do so is not a mere procedural technicality to be cured under Article 159 of the Constitution

Court orders

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  1. 1.The applicants' motion dated 8th April 2019 is dismissed in its entirety

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 24 Rule 3(2)
  • Civil Procedure Rules, 2010Order 24 Rule 3(1)
  • Civil Procedure Rules, 2010Order 24 Rule 4
  • Civil Procedure Rules, 2010Order 24 Rule 4(1)
  • Civil Procedure Rules, 2010Order 24 Rule 7(2)
  • Appellate Jurisdiction Act, CAP 9Section 3A
  • Appellate Jurisdiction Act, CAP 9Section 3B
  • Court of Appeal Rules, 2010Rule 42(1)
  • Court of Appeal Rules, 2010Rule 43(1)
  • Constitution of Kenya, 2010Article 159

Cases cited (2)

  • Daniel Kimani Njihia v. Francis Mwangi Kimani & Another
    [2015] eKLR
  • Registered Trustees of Ruiru Sports Club & 3 others vs. Isaac Karuri Nyongo & 15 others
    [2014] eKLR
On appeal from
High Court
Embu Civil Appeal No. 27 of 2000
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act (CAP 9) and Rules 42(1) and 43(1) of the Court of Appeal Rules, 2010

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, "Edward Njagi Mugo & another v Stephen Muna Mugo & 2 others; James Ndegwa & another (Intrested Parties) [2021] KECA 523 (KLR)", Case Analysis (2021). Civil Application No. 1 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/523/eng@2021-06-04

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