Ombui Richard v Mbage Njuguna Ng’ang’a & 1 other
The bottom line
#Kenya's Court of Appeal refused to let an administrator join an appeal years after the deceased's name was struck out with consent, calling it an abuse of process.
What this practically means
#Executive summary
#Key legal issues
#Competence of an appeal instituted against a deceased respondent
An appeal is not incompetent merely because the respondent was dead when it was instituted; the remedy is substitution of the legal representative upon application
Rule 85 of the Court of Appeal Rules provides that an appeal shall not be instituted in the name of a dead person but may be instituted by the legal representative, and that an appeal is not incompetent merely because the respondent was dead when instituted; the court may on application cause the legal representative to be made a party in place of the deceased. The Court found the appeal against the deceased was therefore competent.
Joinder of the deceased's administrator after the deceased's name was struck out
The application to join the administrator was an abuse of process because the family knew of the proceedings, took no action, and consented to the striking out; and the alleged rider to the striking-out order did not exist
The applicant, appointed administrator on January 23, 2014, never sought to be joined in the High Court or in this Court. Instead an advocate appearing for the family consented to Teresa's name being struck out on January 20, 2020. The applicant did not explain the change of position nor seek to set aside that order, and the Court found on the record there was no rider permitting the legal representative to apply to be enjoined. The application was accordingly an abuse of process.
Legal principles established
#- An appeal against a deceased respondent is not incompetent; the Court may, on the application of any interested person, cause the deceased's legal representative to be made a party in place of the deceased - but a legal representative who knew of the proceedings and took no steps, and whose deceased's name was lawfully struck out with consent, cannot later be joined
Court orders
#- 1.The applicant's notice of motion dated February 6, 2020 seeking to be enjoined in the appeal as interested party is dismissed with costs
- On appeal from
- High Court of Kenya
- Not stated (judgment delivered March 27, 2014)
- Jurisdiction invoked
- Inherent/appellate jurisdiction of the Court of Appeal read with Rule 85 of the Court of Appeal Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ombui Richard v Mbage Njuguna Ng’ang’a & 1 other", Case Analysis (2023). Not stated in the judgment (civil application within an appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/109/eng@2023-02-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.