Njoroge & another v Kamau (Deceased) & another (Civil Appeal (Application) E051 of 2019) [2024] KECA 806 (KLR)
The bottom line
#Kenya's Court of Appeal revived an appeal that had lapsed when the respondent died, confirming that interested parties — not only legal representatives — can seek revival.
What this practically means
#Executive summary
#Key legal issues
#Who may apply to revive an abated appeal
Rule 102(3) of the Court of Appeal Rules, 2022 extended the right to revive an abated appeal beyond the legal representative to an interested party, curing the defect identified in Elizabeth Wanjiru Njenga.
Rule 102(3) amends the repealed rule 99(3) of the 2010 Rules by inserting 'or an interested party'. The court read the amendment as a legislative response to the concerns in Elizabeth Wanjiru Njenga, where the Court had questioned why only a legal representative could revive an abated appeal while any interested person could seek substitution within 12 months of death. Accordingly, the application was properly before the Court notwithstanding that the applicants were not legal representatives of the deceased respondent.
Whether the proposed respondent had locus to participate given his denial of administration
The proposed respondent's denial was untenable: he held Limited Letters of Grant Ad Litem not confined to the first appellate court, and had used the grant to execute for costs.
The court examined the Limited Letters of Grant Ad Litem issued by the High Court in Nyahururu in favour of the proposed respondent and found they did not limit his authority to the proceedings before the first appellate court. Since he had used the same grant to pursue costs awarded by the High Court in the very judgment underlying the abated appeal, he was estopped from denying that he was the administrator of the deceased's estate. He was therefore a proper candidate for substitution.
Whether the delay of 1 year and 5 months in seeking revival was inordinate
The delay was not inordinate because the applicants showed active steps: citation proceedings, a letter to the Registrar of Births and Deaths, and difficulty identifying the legal representative.
Revival requires proof of sufficient cause preventing a timely substitution application. The applicants deponed that the deceased died on 1st March 2020 and they only learnt of the proposed respondent's relationship to the deceased on 11th February 2022. They exhibited citation proceedings dated 1st February 2022 and a counsel's letter of 30th January 2021 seeking a duplicate death certificate. The court found these efforts demonstrated diligence and intent to proceed, and noted precedent reviving appeals abated for longer periods, guided by sections 3A and 3B of the Appellate Jurisdiction Act.
Defective supporting affidavit raised by submissions
The complaint that the supporting affidavit was not commissioned was not determined because it should have been raised by replying affidavit, not submissions.
The proposed respondent argued in submissions that the supporting affidavit was uncommissioned and had no evidentiary value. The court noted the applicants did not respond, but held that such a serious issue should have been raised through a replying affidavit to afford the applicants an opportunity to respond by further affidavit. In the circumstances, the issue did not fall for determination in the application.
Alleged death of the 1st applicant
The claim that the 1st applicant died in 2013 did not defeat the application; any erroneous inclusion of his name is rectifiable and does not affect the 2nd applicant's right to apply.
The proposed respondent averred that the 1st applicant died on 20th June 2013 and thus could not be a party. The court reasoned that the appeal was filed in 2018 and, if the 1st applicant indeed died in 2013, his inclusion was an error capable of rectification. Further, the question of his status could not affect the 2nd applicant's right to bring the application. The argument was rejected as lacking merit.
Legal principles established
#- An abated appeal may be revived either by the legal representative of the deceased party or an interested party to the appeal, under rule 102(3) of the Court of Appeal Rules, 2022.
- Revival of an abated appeal is not granted as of right; the applicant must show sufficient cause preventing timely application for substitution.
- A person who uses a grant ad litem to execute for costs cannot simultaneously deny being the administrator of the estate.
- A party who actively pursues steps toward substitution after learning of a death has not slumbered, and the resulting delay is not inordinate.
Court orders
#- 1.The application for revival of the abated appeal is allowed
- 2.The prayer for substitution of the deceased respondent by the proposed respondent in the revived appeal is allowed
- 3.The applicants to file and serve an amended record of appeal within 14 days from the date of delivery of the ruling
- 4.The issue as to whether the 1st applicant is alive or not to be taken care of through the amended appeal
- 5.The costs of the application shall abide the final outcome of the revived appeal
- Jurisdiction invoked
- Rule 99(1) and (2) of the Court of Appeal Rules and sections 3A and 3B of the Appellate Jurisdiction Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njoroge & another v Kamau (Deceased) & another (Civil Appeal (Application) E051 of 2019) [2024] KECA 806 (KLR)", Case Analysis (2024). Nakuru Civil Appeal No. 51 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/806/eng@2024-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.