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Court of AppealAllowedCivil Appeal (application dated 13th November 2017) – instituted 14th July 2016· [2024] KECA 622 (KLR)

Njuguna v Republic & 5 others; Mungai (5th Respondent) (Substitute) (Civil Appeal (Application) 23 of 2016) [2024] KECA 622 (KLR)

Court of Appeal of Kenya
24 May 2024
FOF. Ochieng
1,056 words in judgment
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The bottom line

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The Court of Appeal revived an appeal against a deceased party because the appellant acted quickly once he learned who the estate's representative was.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nakuru, delivered by F. Ochieng, JA, on a single-judge application dated 13th November 2017 by James Mwaniki Njuguna, the appellant, seeking revival of his appeal against the 5th respondent, Samuel Gachau Maina, and substitution of the deceased by his legal representative, Benson Gachau Mungai. The appeal had been instituted on 14th July 2016; the 5th respondent died on 30th July 2016 while it was pending. The applicant learnt of the death in December 2016 and promptly instructed his advocates to enquire from the deceased's advocates about substitution, but received no response. He only learnt the identity of the legal representative on 5th October 2017, when served with a replying affidavit filed by Benson Gachau Mungai in Judicial Review No. 7 of 2017 (Nyahururu), annexing a limited grant of letters of administration ad litem. The court found that under Rule 102(2) of the Court of Appeal Rules the appeal against the 5th respondent had abated, no substitution application having been made within twelve months of death – a fact the applicant conceded. However, under Rule 102(3) the court revived the appeal, holding that the applicant was prevented by sufficient cause: he showed a genuine desire to pursue the appeal and could not plausibly have imposed a legal representative on the estate of one of six adversaries. Applying the court's earlier decision in John Mugambi & 21 others v Kenya National Assurance Co. (2001) Limited, it stressed the exceptional nature of revival relief and the need for expedition, finding the applicant had moved with reasonable speed. The respondents filed no replying affidavit or submissions. The court ordered revival of the appeal against the 5th respondent, substitution of Benson Gachau Mungai, and that the 5th respondent pay the costs of the application.

Key legal issues

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01

Abatement of the appeal against the deceased 5th respondent

Holding

The appeal against the 5th respondent abated because no substitution application was made within 12 months of his death on 30th July 2016, as the applicant conceded.

Reasoning

Rule 102(2) provides that an appeal abates if no application is made to replace a deceased party within twelve months of death. The 5th respondent died on 30th July 2016 and no application was made within that period, so the appeal against him abated. The applicant readily conceded this, leaving only the question of revival under Rule 102(3).

p. 2
02

Sufficient cause for revival and substitution

Holding

The applicant showed sufficient cause: he promptly enquired about substitution upon learning of the death, and only learned the identity of the legal representative when served with a replying affidavit in October 2017; the appeal was revived and the legal representative substituted.

Reasoning

The applicant demonstrated a desire to pursue the appeal by having his advocates enquire about substitution soon after learning of the death. The legal representative's advocates remained silent despite the enquiry, and the applicant filed the application promptly after learning of Benson Gachau Mungai's identity on 5th October 2017. The court found revival to be in the interest of justice and fairness, and substituted the legal representative who had obtained letters of administration ad litem.

p. 3

Legal principles established

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  • An appeal does not abate on death; it abates only if no application to join the legal representative is made within twelve months, but the court may revive an abated appeal where the legal representative was prevented by sufficient cause from continuing it.
  • Revival of an abated or dismissed appeal is exceptional relief requiring expedition by the applicant.

Court orders

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  1. 1.The appeal against the 5th respondent is revived
  2. 2.Benson Gachau Mungai, the legal representative of the deceased 5th respondent, is substituted for the 5th respondent
  3. 3.The costs of the application shall be paid by the 5th respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 102(1), (2), (3) and (4)

Cases cited (1)

  • John Mugambi & 21 others v Kenya National Assurance Co. (2001) Limited
    [2016] eKLR
Jurisdiction invoked
Rule 102(3) and (4) of the Court of Appeal Rules – application to revive an abated appeal and substitute a deceased respondent's legal representative, may be made before a single judge

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Njuguna v Republic & 5 others; Mungai (5th Respondent) (Substitute) (Civil Appeal (Application) 23 of 2016) [2024] KECA 622 (KLR)", Case Analysis (2024). Civil Appeal (application dated 13th November 2017) – instituted 14th July 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/622/eng@2024-05-24

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