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Court of AppealAllowedNot stated in judgment· [2024] KECA 1364 (KLR)

Kinyua (Suing as the legal representative of the Estate of Joseph Kinyua Mukiri - Deceased) & another v Waduna (Civil Appeal (Application) 180 of 2018) [2024] KECA 1364 (KLR)

Court of Appeal of Kenya
3 October 2024
SKS. Ole Kantai
503 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that an appeal doesn't die when a party does — a widow successfully revived her late husband's appeal and took his place.

What this practically means

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Executive summary

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This was an unopposed Motion under rule 99 of the Court of Appeal Rules, 2010 (rule 102 of the 2022 Rules) by Mary Wamuyu Kinyua, the widow and holder of a limited grant for the 1st appellant, Joseph Kinyua Mukiri, who died on 12th October 2022. She sought extension of time to apply to be substituted for the deceased 1st appellant, revival of the appeal that had abated, and leave to prosecute it. The judgment records that no replying affidavit was filed and that only the applicant filed written submissions despite a hearing notice issued on 2nd September 2024. The judge, S. Ole Kantai JA, set out the text of rule 102(1), which provides that an appeal shall not abate on the death of an appellant or respondent and that the Court shall, on the application of any interested person, cause the legal representative of the deceased to be made a party in place of the deceased. The applicant had obtained a limited grant dated 9th August 2024, by which time the appeal had already abated, necessitating the extension of time. The court allowed the Motion: it extended time, revived the abated appeal, substituted Mary Wamuyu Kinyua in place of her late husband, and ordered that the costs of the Motion abide the appeal. The decision is a routine but useful exercise of the Court's discretion on abatement and substitution; it binds the High Court and subordinate tribunals on the interpretation of the abatement rule. The judgment does not name any decided authorities and is a single, unopposed-instance ruling rather than an inter-partes appellate determination.

Key legal issues

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Substitution of a deceased appellant's legal representative and revival of an abated appeal

Holding

The court was satisfied the applicant was entitled to an extension of time; the abated appeal was revived and the applicant substituted for the deceased 1st appellant.

Reasoning

Relying on rule 102(1) of the Court of Appeal Rules, 2022, the judge held that an appeal does not abate on the death of a party and that the legal representative may be brought in on the application of an interested person. The applicant had obtained a limited grant, explained the death of the 1st appellant on 12th October 2022 and the abatement of the appeal, and no replying affidavit or submissions were filed by the respondent. On those unopposed facts the court exercised its discretion in the applicant's favour.

p. 2

Legal principles established

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  • An appeal shall not abate on the death of a party; the Court may, on application, cause the legal representative of the deceased to be made a party and may revive an abated appeal and extend time.

Court orders

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  1. 1.Extension of time to enable the applicant pursue the appeal filed by her late husband
  2. 2.The appeal, which had abated, is revived
  3. 3.Mary Wamuyu Kinyua is substituted in place of the deceased 1st appellant, Joseph Kinyua Mukiri, and shall prosecute the appeal
  4. 4.Costs of the Motion will abide the appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 99 (2010 Rules); Rule 102(1) (2022 Rules)
Jurisdiction invoked
Rule 99 of the Court of Appeal Rules, 2010 (rule 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, "Kinyua (Suing as the legal representative of the Estate of Joseph Kinyua Mukiri - Deceased) & another v Waduna (Civil Appeal (Application) 180 of 2018) [2024] KECA 1364 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1364/eng@2024-10-03

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