Wanderi v Kionga
The bottom line
#Kenya's Court of Appeal dismissed a substitution application filed thirty months after a party's death—too late, as appeals abate after twelve months.
What this practically means
#Executive summary
#Key legal issues
#Effect of delay beyond twelve months in applying to substitute a deceased party to an appeal
The appeal abated by operation of rule 99(2) because no substitution application was made within twelve months of the respondent's death; the application made about thirty months later was incompetent, and there was no live appeal to which the legal representative could be joined.
The court applied rule 99 of the Court of Appeal Rules, 2010, which provides that an appeal shall not abate on the death of a party but shall abate if no substitution application is made within twelve months of death. The respondent died on July 19, 2019 (death certificate stated July 17, 2019); the substitution application was filed on February 2, 2022, some thirty months later. The appeal had therefore abated and could only be revived through a revival application, which the applicant had never made. The court declined to consider the respondent's argument that substitution is unnecessary at the execution stage, as unnecessary to the outcome.
Correct procedural anchor for substitution applications in the Court of Appeal
Substitution in a matter before the Court of Appeal is governed by the Court of Appeal Rules, not the Civil Procedure Rules or Civil Procedure Act provisions cited by the applicant.
The applicant anchored his notice of motion on order 1 rules 1, 2, 3 and 4 and order 51 of the Civil Procedure Rules and section 3A of the Civil Procedure Act. The court held that substitution of a party before the Court of Appeal must proceed under the Court of Appeal Rules, which at the material time (February 2022) were the 2010 Rules, specifically rule 99. The cited Civil Procedure provisions could not sustain the application.
Costs of the application
Costs follow the event; the applicant offered no reason to depart from the general rule, so costs were awarded to the respondent.
The court invoked the general rule that costs follow the event unless the court otherwise orders for good reason. The applicant offered no reason warranting departure, and the court awarded the costs of the application to Jane Njoki Geshure, the successful party.
Legal principles established
#- Upon the death of a party to an appeal, if no application to substitute the deceased party is made within twelve months from the date of death, the appeal stands abated under rule 99 of the Court of Appeal Rules, 2010, and can only be revived through an application to the court.
- An application for substitution of a party in a matter before the Court of Appeal must be brought pursuant to the rules of that court, not the Civil Procedure Rules.
Court orders
#- 1.The application dated February 2, 2022 for substitution of the deceased respondent is dismissed
- 2.Costs of the application awarded to Jane Njoki Geshure from the applicant
- Jurisdiction invoked
- Rule 99 of the Court of Appeal Rules, 2010; section 3A of the Civil Procedure Act (invoked by the applicant); the application was determined under the court's own rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wanderi v Kionga", Case Analysis (2023). Civil Application (Substitution) arising from Nakuru Civil Appeal No. 156 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/346/eng@2023-03-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.