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Court of AppealAllowedCivil Appeal No. E532 of 2022 (Application dated 24th May 2024)· [2024] KECA 1633 (KLR)

Young Traders Limited v Gumchem (K) Limited & another (Civil Appeal (Application) E532 of 2020) [2024] KECA 1633 (KLR)

Court of Appeal
8 November 2024
MNMumbi Ngugi
963 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed you can remove a deceased respondent's name from an appeal without derailing the case.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nairobi, delivered by Mumbi Ngugi, JA on 8th November 2024, on an application dated 24th May 2024 by Young Traders Limited, the appellant in Civil Appeal No. E532 of 2022. The applicant sought leave under sections 3 and 3A of the Appellate Jurisdiction Act and rules 46 and 87 of the Court's Rules to amend its memorandum and record of appeal, and its submissions, so as to delete the name of the 2nd respondent, Stephen Kinuthia Waithaka. The applicant averred that the 2nd respondent died on 11th July 2000, before the filing of Civil Suit No. 1260 of 2004, and that Sitati J. had on 22nd March 2010 directed that the suit against him had abated, yet his name was included as 2nd respondent in the appeal against Sergon J.'s judgment of 6th November 2020. The 1st respondent opposed, disputing the chronology and noting that a prior order of 4th March 2024 had directed substitution rather than deletion. The Court held that under rule 87(2) an appeal is not incompetent merely because a respondent is dead, and, following Kenya Hotels Limited v Oriental Commercial Bank Limited, that its discretion to allow amendment depends on the nature and extent of the amendment sought. Finding the amendment simple, non-prejudicial, and in the interest of justice, the Court allowed the application with no order as to costs. The appeal itself remains pending.

Key legal issues

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01

Whether a party may amend a memorandum and record of appeal to strike out a deceased respondent whose suit had abated

Holding

The application was allowed; the amendment was simple, would not affect the substance of the appeal, and would cause no prejudice to the 1st respondent.

Reasoning

Rule 87(2) confirms an appeal is not incompetent merely because a respondent is dead. The applicant sought deletion rather than substitution because the suit against the 2nd respondent had abated before the High Court judgment. The Court, guided by Kenya Hotels Limited v Oriental Commercial Bank Limited, held that discretion to amend turns on the nature and extent of the amendment; deleting the name of a respondent dead before the judgment under appeal is straightforward and prejudicial to no one.

p. 3

Legal principles established

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  • An appeal shall not be incompetent by reason only that a respondent is dead; the Court may on application cause the deceased's legal representative to be made a party (Rule 87(2)).
  • The Court's discretion to allow amendment depends on the nature and extent of the amendment.

Court orders

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  1. 1.Leave granted to amend the memorandum of appeal dated 29th December 2020 and the record of appeal dated 29th December 2020 in Civil Appeal No. E532 of 2022
  2. 2.Leave granted to amend the submissions filed in support of the appeal
  3. 3.No order as to costs

Authorities

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Legislation

  • Appellate Jurisdiction Actsection 3
  • Appellate Jurisdiction Actsection 3A
  • Court of Appeal Rulesrule 46
  • Court of Appeal Rulesrule 46(1)
  • Court of Appeal Rulesrule 87
  • Court of Appeal Rulesrule 87(2)

Cases cited (1)

  • Kenya Hotels Limited v Oriental Commercial Bank Limited
    (Civil Appeal 252 of 2009) [2018] KECA 692 (KLR) (Civ) (23 February 2018) (Ruling)
On appeal from
High Court
Civil Suit No. 1260 of 2004 (judgment by Sergon J.); suit abatement direction by Sitati J.
Jurisdiction invoked
Sections 3 and 3A of the Appellate Jurisdiction Act; Rules 46 and 87 of the Court of Appeal Rules

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, "Young Traders Limited v Gumchem (K) Limited & another (Civil Appeal (Application) E532 of 2020) [2024] KECA 1633 (KLR)", Case Analysis (2024). Civil Appeal No. E532 of 2022 (Application dated 24th May 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1633/eng@2024-11-08

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