Wiliam Ole Nabala v Attorney General & 5 others [2016] KEELC 548 (KLR)
The bottom line
#A Kenyan court dismissed a widow's attempt to overturn a 2015 land judgment, ruling that joining a suit revives it even after abatement and that review and appeal cannot be pursued together.
What this practically means
#Executive summary
#Key legal issues
#Abatement of suit and revival by joinder
Though the suit had abated against the deceased 2nd Defendant under Order 24 Rule 4(3), the Applicant's successful application to be joined and to proceed with the suit on his behalf revived it by implied consent
Under Order 24 Rule 4(3) of the Civil Procedure Rules a suit abates where no substitution application is made within one year of a defendant's death. The 2nd Defendant died on 23rd August 2007 and the joinder application of 19th February 2009 came after abatement. However, the Applicant herself applied to be joined and to continue defending the suit, and the application was allowed on 14th May 2009. By insisting on proceeding, she impliedly consented to revival of the suit against her late husband's estate.
Whether amendment of the Plaint was necessary on joinder
No; the Applicant was joined as the 2nd Defendant in place of the deceased and could continue with the already filed Defence; an amended Defence under Order 24 Rule 4(2) was her remedy if she wished to plead her representative capacity
The court's order of 14th May 2009 joined the Applicant 'as 2nd Defendant in place of Sammy Njuguna who is now deceased'. This was a substitution, not the commencement of a fresh representative suit under Order 4 Rule 4, so no amendment of the Plaint was mandatory. The Applicant participated in the trial through counsel, closing her case on 22nd September 2011 without calling herself. Any failure to plead her capacity was her own or her advocate's doing, not the Plaintiff's or the court's error.
Errors apparent on the face of the record and the scope of review
The alleged errors (abatement, want of amended Plaint, lack of legal advice) were not self-evident errors requiring no elaborate argument; any wrong legal exposition is for appeal, not review
The court held that whether the suit had abated and whether an amended Plaint was required were matters requiring elaborate argument and could not qualify as errors apparent on the face of the record. The Applicant also participated in the trial through her advocate, who closed the defence case on 22nd September 2011. Coming six years after joinder, the application was stale, the Applicant being guilty of laches having slept on her rights and acquiesced in the proceedings.
Leave to file notice of appeal out of time
The trial court has no power to abridge time for filing a notice of appeal under Section 7 of the Appellate Jurisdiction Act; only the Court of Appeal can do so
The judge reasoned that an appeal is commenced by filing a notice of appeal, and it is therefore the Court of Appeal which must allow a party to explain delay and move it out of time. The trial court has nothing to do with a matter escalated to the Court of Appeal. Further, it was paradoxical for the Applicant to seek review of the judgment while simultaneously seeking leave to appeal against it; she had to elect one remedy and could not have both.
Legal principles established
#- Where a suit has abated against a deceased defendant, a successful application by the deceased's legal representative to be joined and to proceed with the suit amounts to implied consent reviving the suit
- Where a party is joined to replace a deceased defendant in place of the existing defence, the Plaintiff need not amend the Plaint; it is for the joined party to file an amended defence if she wishes to rely on her representative capacity
- A party who sleeps on her rights and acquiesces cannot later claim that a judgment is replete with errors (laches)
- An alleged incorrect exposition of law by the trial court is a ground of appeal, not review
- Only the Court of Appeal can grant leave to file an appeal out of time; a party cannot simultaneously seek review of and appeal against the same judgment
Court orders
#- 1.The Applicant's Application dated 8th May, 2015 is dismissed with costs
- Jurisdiction invoked
- Inherent jurisdiction to review its own judgment under the Civil Procedure Rules; Section 7 of the Appellate Jurisdiction Act invoked by the Applicant for abridgement of time
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wiliam Ole Nabala v Attorney General & 5 others [2016] KEELC 548 (KLR)", Case Analysis (2016). Application dated 8th May, 2015 (suit commenced in the High Court at Mombasa in 2001). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/548/eng@2016-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.