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Court of AppealStruck OutCourt of Appeal Civil Appeal No. 49 of 2019 (application dated 24th February 2022)· [2025] KECA 461 (KLR)

Private Development Co. Limited & another v Ngonyo & 3 others (Civil Appeal (Application) 49 of 2019) [2025] KECA 461 (KLR)

Court of Appeal of Kenya
6 March 2025
JMJ. Mativo
470 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out a substitution application because the person the applicants wanted to substitute had also died, making the request pointless.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nakuru, delivered by J. Mativo, JA, on a notice of motion dated 24th February 2022 brought by the applicants under Sections 3A and 3B of the Appellate Jurisdiction Act, Section 3A of the Civil Procedure Act, Rules 1(2) and 4 of the Court of Appeal Rules 2022, Order 50 Rule 5 of the Civil Procedure Rules and Article 159(b) of the Constitution. The applicants sought leave and an extension of time to substitute Solomon Njenga alias Solomon Githendui Njenga in place of the deceased 3rd respondent in Civil Appeal No. 49 of 2019. The application was opposed by the 2nd respondent through grounds of opposition and by the 3rd respondent through a replying affidavit and a further affidavit. The application was disposed of by written submissions. In a further affidavit sworn on 4th March 2025, counsel for the 3rd respondent annexed an uncontroverted burial permit showing that Solomon Githendui Njenga, the very person the applicants wished to enjoin, had himself died on 3rd March 2024. The court held that this rendered the application otiose and an academic exercise, observing that no court can willingly issue an order in vain and that courts loathe determining moot questions or issues which do not present a live controversy. The application was accordingly struck out with no orders as to costs. No decision below was under review; the ruling establishes the mootness principle as its operative holding.

Key legal issues

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01

Mootness of an application for substitution where the proposed substitute is deceased

Holding

The application was struck out because the person sought to be enjoined died, leaving no live controversy for the court to determine

Reasoning

The court noted that counsel for the 3rd respondent swore an uncontroverted further affidavit annexing a burial permit showing that Solomon Githendui Njenga, the person the applicants wished to substitute for the deceased 3rd respondent, himself died on 3rd March 2024. Since the relief sought could produce no practical effect, the application was academic and otiose, and courts will not determine moot questions or issue orders in vain.

p. 2

Legal principles established

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  • Courts will not grant orders that would serve no practical purpose; a cause that no longer presents a live controversy is moot and will be struck out

Court orders

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  1. 1.The applicants' application dated 24th February 2022 is struck out
  2. 2.There shall be no orders as to costs

Authorities

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Legislation

  • Appellate Jurisdiction ActSection 3A
  • Appellate Jurisdiction ActSection 3B
  • Civil Procedure ActSection 3A
  • Court of Appeal Rules, 2022Rule 1(2)
  • Court of Appeal Rules, 2022Rule 4
  • Civil Procedure RulesOrder 50 Rule 5
  • Constitution of Kenya, 2010Article 159(b)
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act; Section 3A of the Civil Procedure Act; Rules 1(2) and 4 of the Court of Appeal Rules 2022; Order 50 Rule 5 of the Civil Procedure Rules; Article 159(b) of the Constitution

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, "Private Development Co. Limited & another v Ngonyo & 3 others (Civil Appeal (Application) 49 of 2019) [2025] KECA 461 (KLR)", Case Analysis (2025). Court of Appeal Civil Appeal No. 49 of 2019 (application dated 24th February 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/461/eng@2025-03-06

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