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Court of AppealStruck OutNot stated in the judgment· [2024] KECA 1379 (KLR)

Others & 23 Others & 23 Others & 23 Others v James Ndege Njuguna & Others

Court of Appeal of Kenya
3 October 2024
JLJ. Lesiit
772 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 struck out a substitution application because the applicants cited court rules but not the actual law that gives the court power to hear it.

What this practically means

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Executive summary

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This is a short interlocutory ruling of the Court of Appeal at Nyeri delivered by Lesiit, JA on 3rd October 2024. Three applicants - sons of three deceased appellants (the 7th, 10th and 11th appellants) - sought to be substituted in their fathers' places to allow the appeal to proceed, citing a Certificate of Confirmation of Grant obtained by the first applicant and Limited Grants Ad-Litem obtained by the second and third applicants. The application was expressed to be brought under Order 52 rule 1 and Order 25 rule 3(1) and (2) of the Civil Procedure Rules. The respondents opposed, arguing inordinate delay, non-survival of the cause of action, and abatement of the suit. The court observed that an identical earlier application had been heard by Wanjiru Karanja, JA, who in a ruling of 7th July 2024 had held that the statute underpinning the application was not indicated and that no law donating jurisdiction to the Court had been cited, noting also that some or all of the deceased parties had died long before the appeal was filed. Finding that the applicants had repeated the same error, the court held that its jurisdiction had not been invoked and struck out the application with no order as to costs.

Key legal issues

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Whether the Court's jurisdiction was properly invoked by an application premised only on Civil Procedure Rules without citing the empowering statute

Holding

The application was struck out because the statute underpinning it was not identified and no law donating jurisdiction to the Court was cited

Reasoning

The court noted that an identical earlier application before Wanjiru Karanja, JA had been rejected for the same defect: the rules were cited but the statute on which the application was premised was not indicated, so no jurisdictional foundation was disclosed. The same mistake was repeated here, and the same factual difficulty - parties who died long before the appeal was filed - persisted. Without a jurisdictional anchor the court could not entertain the substitution.

p. 2

Legal principles established

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  • A party seeking relief from the Court of Appeal must cite the specific law that donates jurisdiction; without it the Court's jurisdiction is not invoked and the application will be struck out

Court orders

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  1. 1.The application is struck out with no order as to costs
Jurisdiction invoked
Not established - the court found that no law donating jurisdiction had been invoked; application was premised on Order 52 rule 1 and Order 25 rule 3(1) and (2) of the Civil Procedure Rules (marked sic)

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, "Others & 23 Others & 23 Others & 23 Others v James Ndege Njuguna & Others", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1379/eng@2024-10-03

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