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Court of AppealAllowed· [2023] KECA 896 (KLR)

Njoru & another v Equity Bank Limited & another; Ndegwa (Interested Party) (Civil Appeal (Application) 317 of 2018) [2023] KECA 896 (KLR)

Court of Appeal of Kenya
24 July 2023
HOHannah Okwengu
1,028 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal confirmed that even an appeal that has legally 'died' can be revived if you explain the delay, so act quickly after a party dies.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nairobi, delivered by Okwengu, JA on 24 July 2023, on two unopposed applications by John Murage Ndegwa, an interested party. The 1st and 2nd appellants, husband and wife and the applicant's parents, died on 23 January 2019 and 26 October 2019 respectively while the appeal was pending. No application for substitution was made within twelve months, so the appeal abated by operation of Rule 102 of the Court of Appeal Rules, 2022 on 27 October 2020. The applicant deponed that he only learned of the appeal in February 2021, obtained letters of administration ad litem on 1 April 2021, and applied on 19 May 2021 to revive the appeal and be substituted in place of the deceased appellants; a further application followed on 9 February 2023 after a change of advocates. The respondents were served but filed no response. The court reiterated that abatement extinguishes a suit automatically by passage of time, but that Rule 102(3) empowers the Court to revive an abated appeal where sufficient cause for the failure to apply for substitution in time is shown. Relying on its earlier decision in Said Sweilen Gheitan Saanum and Gachihi Wang'ombe, where revival was granted six years after death, the court found the explanation reasonable and the delay not inordinate, allowed the motion, revived the appeal, and substituted the applicant for the deceased appellants, with costs in the appeal.

Key legal issues

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01

Effect of abatement of an appeal

Holding

An abated suit ceases to exist in the eye of law, taking effect automatically by passage of time when no substitution application is made within one year.

Reasoning

The court, citing its earlier decision in Said Sweilen Gheitan Saanum, restated the legal effect of abatement: it is an automatic consequence flowing from the omission to implead the legal representative within one year, not requiring any order of the court.

p. 2
02

Revival of an abated appeal and substitution

Holding

Where the legal representative offers a satisfactory explanation for the delay, the Court has discretion under Rule 102(3) to revive the appeal and substitute the legal representative, even where the delay is substantial.

Reasoning

Applying Rule 102(3) and the approach in Gachihi Wang'ombe, the court found the applicant's explanation - his unawareness of the appeal, obtaining letters of administration ad litem, and promptly applying for revival upon learning of the appeal - amounted to sufficient cause; the delay was not inordinate given both appellants died in close proximity.

p. 3

Legal principles established

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  • An appeal does not abate on the death of a party, but abates automatically if no application for substitution of the legal representative is made within 12 months of the death.
  • The Court may revive an abated appeal where the applicant's failure to apply for substitution within 12 months is explained by sufficient cause.

Court orders

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  1. 1.The abated appeal is revived
  2. 2.John Murage Ndegwa is substituted in place of the deceased appellants
  3. 3.Costs shall be in the appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 102

Cases cited (2)

  • Said Sweilen Gheitan Saanum vs Commissioner of Lands (being sued through Attorney General) & 5 others
    [2015] eKLR
  • Gachihi Wang'ombe vs. James Muriuki & Another
    [2011] eKLR
Jurisdiction invoked
Rule 102(3) 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, "Njoru & another v Equity Bank Limited & another; Ndegwa (Interested Party) (Civil Appeal (Application) 317 of 2018) [2023] KECA 896 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/896/eng@2023-07-24

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