Josephine Wamwathi v Stephen Mwangi Ndirangu & 1 other
The bottom line
#The Court of Appeal refused to substitute a deceased appellant because the appeal had already died in law after no substitution application was made within twelve months of death.
What this practically means
#Executive summary
#Key legal issues
#Whether the appeal abated and whether substitution could be granted after abatement
The appeal abated one year after the appellant's death on 29th August 2021; the application, brought 2 years and 9 months after abatement by a person who is not the legal representative, was incompetent because no substitution is possible in an appeal that no longer exists in law
The Court of Appeal Rules, 2022 provide that an appeal shall not abate on death, but abates if no application is made within twelve months. The applicant brought the application as an interested person, not as the legal representative, and long after abatement. Relying on Mehta vs Shah and Said Sweilem, the court held that a suit which has abated ceases to exist in law and proceedings taken in it are a nullity, so the application had to be dismissed.
Legal principles established
#- An appeal abates one year after the death of an appellant if no application for substitution of the legal representative is made within twelve months of the death, and a suit that has abated ceases to exist in law
- A court cannot substitute a party in an appeal that has abated and no longer exists
Court orders
#- 1.The application for substitution of the deceased appellant was dismissed
- 2.Costs of the application awarded to the respondents
- Jurisdiction invoked
- Court of Appeal Rules, 2022 (provisions on death of a party to an appeal and revival of an abated appeal), invoked through a notice of motion under Rule 49 and the Probate and Administration Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Josephine Wamwathi v Stephen Mwangi Ndirangu & 1 other", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1324/eng@2024-09-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.