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Court of AppealDismissedCivil Appeal (Application) 40 of 2020· [2024] KECA 1890 (KLR)

Ndwiga v Muthanje

Court of Appeal
20 December 2024
AMA.O. Muchelule
591 words in judgment
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The bottom line

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The Court of Appeal refused to revive a land appeal that automatically died because the applicant waited too long after the other party's death to act.

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 Nyeri dismissing an application by Mariko Ndwiga to revive an appeal that had abated and to substitute John Nguu Gakindi, the legal representative of the deceased respondent Edith Muthanje. The underlying appeal was against a judgment of the Environment and Land Court at Nyeri (Y.M Angima, J.) dated 16 January 2020. The respondent died on 22 September 2020; under Rule 102 of the Court of Appeal Rules 2022 the appeal abated twelve months later, on 22 September 2021, because no application to join her legal representative was made within that period. A grant was issued to Gakindi on 21 September 2021 in Succession Cause No. E062 of 2021. The applicant, relying on Rules 4, 44, 55, 56 and 102 of the Court of Appeal Rules 2022 and sections 3A and 3B of the Appellate Jurisdiction Act (Cap. 9), sought extension of time to join the legal representative and revival of the appeal. Muchelule, JA found that Rule 102 permits revival only where sufficient cause is proved, and that the applicant offered no explanation for the delay between September 2021, when the grant was issued, and March 2024, when his counsel first inquired about the grant. The application was dismissed with no orders as to costs. The ruling confirms that abatement under Rule 102 is automatic after twelve months and that revival demands a satisfactory explanation for the whole period of inaction.

Key legal issues

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01

Whether sufficient cause was shown for reviving the abated appeal

Holding

The application was dismissed because the applicant offered no explanation for the inaction between the grant of representation in September 2021 and the inquiry of March 2024.

Reasoning

Rule 102 of the Court of Appeal Rules permits revival of an abated appeal only where sufficient cause is proved. The respondent died on 22 September 2020 and the appeal abated on 22 September 2021. The applicant only made inquiries in March 2024 and gave no explanation for the intervening period, so sufficient cause was not established.

p. 2

Legal principles established

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  • An appeal abates if no application to join the deceased's legal representative is made within twelve months of death
  • A court may revive an abated appeal where the legal representative was prevented by sufficient cause from continuing the appeal

Court orders

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  1. 1.The application dated 3rd September 2024 is dismissed
  2. 2.No orders as to costs
On appeal from
Environment and Land Court of Kenya at Nyeri
ELC C.A No. 19 of 2019
Jurisdiction invoked
Rules 4, 44, 55, 56 and 102 of the Court of Appeal Rules 2022; sections 3A and 3B of the Appellate Jurisdiction Act (Cap. 9)

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, "Ndwiga v Muthanje", Case Analysis (2024). Civil Appeal (Application) 40 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1890/eng@2024-12-20

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