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Court of AppealPartially AllowedCivil Appeal No. 171 of 2018 (application dated 29th December 2022 and notice of motion dated 19th January 2023)· [2023] KECA 739 (KLR)

King’ori (Deceased) v Humphrey Njuru Karanja & another (Civil Appeal (Application) 171 of 2018) [2023] KECA 739 (KLR)

Court of Appeal
22 June 2023
DMD. K. MusingaKLDr. K. I. LaibutaJMJ. Mativo
2,277 words in judgment
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The bottom line

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Kenya's Court of Appeal revived an appeal that had lapsed after a party died, confirming that abatement is not the end of the road if you can explain the delay.

What this practically means

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Executive summary

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This judgment of the Court of Appeal at Nairobi (Musinga, P., Laibuta and Mativo, JJ.A.) determines two competing interlocutory applications in Civil Appeal No. 171 of 2018, an appeal from the Environment and Land Court's judgment in ELC Suit No. 193 of 2007 delivered on 6th April 2018. The appellant, John Mwangi King'ori, died on 22nd January 2021. His legal representatives obtained a Grant of Letters of Administration Intestate on 17th August 2021 but made no application for substitution. The 1st respondent applied under rules 71 and 102 of the Court of Appeal Rules, 2022 for the appeal to be struck out as having abated and for his Cross-Appeal to be listed for hearing. The deceased's legal representative, Susan Nyokabi Mwangi, applied under rules 44 and 102 for revival of the appeal and substitution, explaining her prolonged ill health. The Court held that rule 71 relates to criminal appeals and is inapplicable; that by operation of rule 102(2) the appeal abated one year after death in the absence of a substitution application; but that abatement does not lead to automatic striking out, since rule 102(3) permits revival where sufficient cause is proved. Accepting the medical evidence of the legal representative's illness and guided by the overriding objective in sections 3A and 3B of the Appellate Jurisdiction Act, the Court allowed revival of the abated appeal only, with costs of that application to the respondents, and dismissed the 1st respondent's striking-out application, its costs to abide the outcome of the appeal. Substitution was not granted in terms.

Key legal issues

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01

Whether the appeal abated by operation of rule 102(2)

Holding

The appeal abated on 22nd January 2022, one year after the appellant's demise, as no application for substitution was made within twelve months

Reasoning

The appellant died on 22nd January 2021 and Grant of Letters of Administration issued on 17th August 2021. Despite the grant, no application was made by the legal representatives or any interested person under rule 102(1) to substitute the deceased. The rule is not exclusionary and respondents may also apply; the only requirement is demonstration of interest in the appeal.

p. 3
02

Whether sufficient cause was shown to revive the abated appeal under rule 102(3)

Holding

The legal representative's documented ill health (high blood pressure, diabetes and cancer) constituted sufficient cause, and the appeal was revived

Reasoning

The Court examined medical laboratory reports annexed to the application showing the legal representative was in poor health. It was satisfied that her ill health could have prevented her from applying for substitution within the stipulated timeframe. The Court was further guided by the overriding objective under sections 3A and 3B of the Appellate Jurisdiction Act, which requires just, expeditious, proportionate and affordable resolution of appeals.

p. 4

Legal principles established

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  • An appeal does not automatically abate on death; abatement occurs only if no substitution application is made within twelve months of death under rule 102(2)
  • The consequence of abatement is not automatic striking out; an abated appeal may be revived where sufficient cause is proved
  • Rule 71 of the Court of Appeal Rules relates to Criminal Appeals and does not apply to civil appeals on abatement

Court orders

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  1. 1.The notice of motion dated 19th January 2023 is allowed in terms of the prayer for the revival of the abated appeal only
  2. 2.Costs of the application dated 19th January 2023 are awarded to the respondents
  3. 3.The 1st respondent's application dated 29th December 2022 is dismissed
  4. 4.Costs in respect of the 1st respondent's application shall abide the outcome of the appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159
  • Appellate Jurisdiction ActSection 3A
  • Appellate Jurisdiction ActSection 3B
  • Court of Appeal Rules, 2022Rule 71(1)(a) and (2)
  • Court of Appeal Rules, 2022Rule 102(1), (2) and (3)
  • Court of Appeal Rules, 2022Rule 44

Cases cited (2)

  • Abok James Odera T/A A. J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates
    [2013] eKLR
  • Issa Masudi Mwabumba v Alice Kavenya Mutunga & 4 others
    [2012] eKLR
On appeal from
Environment and Land Court
ELC Suit No. 193 of 2007
Jurisdiction invoked
Article 159 of the Constitution; sections 3A and 3B of the Appellate Jurisdiction Act; rules 44 and 102 of the Court of Appeal Rules, 2022

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, "King’ori (Deceased) v Humphrey Njuru Karanja & another (Civil Appeal (Application) 171 of 2018) [2023] KECA 739 (KLR)", Case Analysis (2023). Civil Appeal No. 171 of 2018 (application dated 29th December 2022 and notice of motion dated 19th January 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/739/eng@2023-06-22

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