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Court of AppealAllowedCivil Appeal (Application) 181 of 2017· [2022] KECA 1159 (KLR)

(Zeinabu) Janmohamed (Senior Counsel) v Joseph Lekamario & Others

Court of Appeal

18 October 2022

LKL. Kimaru

284 words in judgment

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The bottom line

Kenya's Court of Appeal allowed a deceased party's personal representative to step into an ongoing appeal, confirming that estates stay on the hook even after death.

What this practically means

Executive summary

This is a short unopposed ruling of the Court of Appeal at Nyeri (Kimaru, JA) in a notice of motion brought under Article 159(d) of the Constitution, sections 3A and 3B of the Appellate Jurisdiction Act, and Rules 51(4) and 99(3) (now Rule 102(3)) of the Court of Appeal Rules, 2010. The applicant, Zehrabanu (Zainabu) Janmohamed (SC), is the personal representative of Daniel Toroitich Arap Moi (deceased), who had been the 2nd respondent in a pending appeal, Civil Appeal No. 38 of 2016, Joseph Lekamario & others v African Wildlife Foundation & 2 others. She sought to be substituted as the 2nd respondent in place of the deceased respondent. The application was not opposed; indeed, a consent had been filed in court urging the court to allow the substitution as prayed. The court allowed the application, ordering that the applicant be substituted for the deceased as 2nd respondent in the appeal, and made no orders as to costs. The ruling contains no citation of case law and no extended reasoning; its significance lies in confirming the routine substitution of a deceased party's personal representative in a pending appeal where the application is unopposed and supported by consent of the parties.

Key legal issues

Substitution of a deceased respondent's personal representative in a pending appeal

Holding

The application for substitution was allowed as prayed, the application being unopposed and supported by a consent filed in court.

Reasoning

The applicant, as personal representative of Daniel Toroitich Arap Moi (deceased), sought substitution as 2nd respondent under the then Rule 99(3), now Rule 102(3), of the Court of Appeal Rules. The application was not opposed; a consent urging the court to allow it had been filed. The court accordingly allowed the substitution as prayed, with no orders as to costs.

p. 1

Legal principles established

A personal representative of a deceased respondent may be substituted for the deceased party in a pending appeal under Rule 99(3) (now Rule 102(3)) of the Court of Appeal Rules, particularly where the application is unopposed and supported by consent.

Court orders

1.Zehrabanu (Zeinabu) Janmohamed (SC) is hereby allowed to substitute Daniel Toroitich Arap Moi (deceased) as the 2nd respondent in the above appeal.
2.There shall be no orders as to costs.

Authorities

Legislation

Constitution of Kenya, 2010Article 159(d)
Appellate Jurisdiction ActSections 3A and 3B
Court of Appeal Rules, 2010Rule 51(4)
Court of Appeal Rules, 2010Rule 99(3) (now Rule 102(3))

Jurisdiction invoked: Article 159(d) of the Constitution of Kenya, 2010; Sections 3A and 3B of the Appellate Jurisdiction Act; Rules 51(4) and 99(3) (now Rule 102(3)) of the Court of Appeal Rules, 2010

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "(Zeinabu) Janmohamed (Senior Counsel) v Joseph Lekamario & Others", Case Analysis (2022). Civil Appeal (Application) 181 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1159/eng@2022-10-18

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