Gachuhi & another (Suing as the Managers of the Estate of Margaret Wanjiru Gachuhi) v Wanjohi & 5 others

Order 43 of the Civil Procedure Rules categorises orders made under Order 24 Rule 3 as requiring leave to appeal, while orders under Order 24 Rule 7 do not. The ruling declining revival was under Order 24 Rule 3, so the appeal against it, filed without leave, was incompetent. As to substitution under Order 24 Rule 7(2), leave was not required, but reviving that limb would be futile since the suit remained abated.

The Court applied the settled principle that an appellate court interferes with discretionary decisions only where the judge misdirected himself, misapprehended the facts, took into account irrelevant matters, failed to consider relevant matters, or was plainly wrong. The judge had identified a 7-year delay, dismissed the explanations of a missing file and change of advocates as unpersuasive, and the appellants showed no follow-up action. The discretion was therefore properly exercised.

Relying on Said Sweilem and Rebecca Mijide Mungole, the Court held that Order 24 must be read as a whole: time must first be extended, then the legal representative joined, then revival sought. The appellants never sought enlargement of time, did not address that lapse despite it being raised, and offered no sufficient explanation for a two-years-ten-months period of inaction after obtaining the limited grant. Blaming former advocates without demonstrating diligence was inexcusable.

Following the Supreme Court's guidance in Raila Odinga v IEBC, the Court held that the Article requires courts not to pay undue regard to technicalities but does not excuse litigants from complying with procedural requirements. Substantial justice can only be invoked where no negligence, inaction or want of bona fides is imputed to the litigant; the appellants were indolent and continued to benefit from the suit property.