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ELCPartially AllowedNyeri Civil Appeal No. 8 of 1973 (abated) - Notices of Motion dated 26th March, 2015 and 27th March, 2015· [2016] KEELC 1076 (KLR)

Peterson Gichohi & 2 others v Maina Johana Miano alias Joseph Miana Miano [2016] KEELC 1076 (KLR)

High Court of Kenya at Nyeri
1 March 2016
LWL N Waithaka
2,831 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This ruling of the High Court at Nyeri (L N Waithaka, J) determined two unopposed and contested notices of motion dated 26th and 27th March, 2015 in Nyeri Civil Appeal No. 8 of 1973 (abated). The first, brought by P.K. Njuguna & Company Advocates, sought leave to come on record in place of M/S Munene Muriuki & Company Advocates; a consent between the two firms having been executed, the court held that leave under Order 9 Rule 9(a) was unnecessary but allowed the application as prayed since no prejudice was occasioned. The second application, by the applicants as administrators of the estate of Peterson Gichohi (deceased), sought substitution of the deceased appellant, setting aside of the order of 21st July, 2009 marking the appeal as abated, revival of the appeal, and stay of execution of the decree in Kerugoya Civil Appeal No. 2 of 1972. The respondent opposed, citing the absence of provision for reviving abated appeals, inordinate delay of nearly 15 years, and failure to apply for extension of time for substitution. Relying on Issa Masudi Mwabumba v Alice Kavenya Mutunga, the court held the delay adequately explained by advocates' misadvice and, noting the applicants' occupation of the suit property for over four decades and that the issues were arguable, revived the appeal, set aside the abatement order, and enlarged time of its own motion for substitution. The stay prayer was refused as res judicata; instead, maintenance of status quo was ordered. Costs were awarded against the applicants, who were directed to prosecute the appeal within one year failing which the orders would stand vacated.

Key legal issues

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01

Change of advocate after judgment

Holding

The application under Order 9 Rule 9 was allowed since a consent between the outgoing and incoming advocates had been executed and filed, and no prejudice was occasioned

Reasoning

Order 9 Rule 9 governs change of advocate after judgment, effected either by court order upon application with notice, or by consent filed between outgoing and incoming advocates. Where consent under sub-rule (b) exists, the leave application under sub-rule (a) is unnecessary; the court nonetheless allowed it as prayed since no prejudice was occasioned.

p. 2
02

Revival of an abated appeal after inordinate delay

Holding

The abated appeal was revived despite a delay of nearly 15 years, the delay having been adequately explained by misadvice from the applicants' previous advocates

Reasoning

Under Order 24 Rules 3(2) and 7(2) a party must show sufficient cause for not continuing the suit. Although the delay of nearly 15 years was inordinate and longer than in the authorities cited, the court found it adequately explained by advocates' misadvice, and noted the applicants had occupied the suit property for over four decades and that the issues were arguable, making revival in the interest of justice.

p. 5
03

Substitution of a deceased appellant without an application for extension of time

Holding

The court, of its own motion under Section 3A of the Civil Procedure Act, enlarged time and treated the substitution prayer as premised on an application for enlargement of time

Reasoning

Although the applicants had not applied for extension of time within which to apply for substitution as contemplated under Order 50 Rule 5, the court invoked its inherent power under Section 3A of the Civil Procedure Act, giving effect to the overriding objective under Article 159 of the Constitution read with Sections 1A and 1B, enlarged time of its own motion and granted substitution.

p. 5
04

Stay of execution of the decree appealed from

Holding

The prayer for stay was refused as res judicata, a similar prayer having earlier been denied, but status quo was ordered to be maintained given the applicants' occupation of the suit property

Reasoning

Owing to the inordinate delay in bringing the application for stay and the fact that a similar prayer had been sought and denied by a court of competent jurisdiction, the stay prayer was res judicata. However, considering the special circumstances - the applicants' occupation of the suit property - the court substituted an order maintaining status quo pending the hearing and determination of the appeal.

p. 5

Legal principles established

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  • An application for leave to come on record after judgment under Order 9 Rule 9 is only required where the consent contemplated under sub-rule (b) has not been obtained and filed
  • An inordinate delay in applying to revive an abated appeal may be excused where adequately explained and where the interest of justice favours determination of arguable issues on their merits

Court orders

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  1. 1.Leave granted to P.K. Njuguna & Company Advocates to come on record in place of M/S Munene Muriuki & Company Advocates for the applicants
  2. 2.The applicants substituted in place of the deceased appellant, Peterson Gichohi
  3. 3.The order of 21st July, 2009 marking the appeal as abated set aside/vacated and the appeal revived
  4. 4.Time for the application for substitution enlarged of the court's own motion
  5. 5.An order for maintenance of status quo issued in lieu of stay of execution, pending hearing and determination of the appeal
  6. 6.Applicants condemned to pay the costs of the application
  7. 7.Applicants directed to have the appeal heard and determined within one year from the date of the ruling, failing which the orders in their favour shall stand vacated

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 24 Rules 3(2) and 7(2)
  • Civil Procedure RulesOrder 50 Rule 5
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSections 1A and 1B
  • Appellate Jurisdiction ActSections 3A and 3B
  • Constitution of Kenya, 2010Article 159

Cases cited (7)

  • Issa Masudi Mwabumba v. Alice Kavenya Mutunga & 4 others
    (2012) e KLR
  • Leo Sila Mutiso vs. Rose
    CA NAI 255 of 1997 (unreported)
  • Gachihi Wang'ombe v. James Muriuki Maina & Another
    (2011) e KLR
  • Njonjo Njubi v. Njubi Karungari
    (2013) e KLR
  • Rosemary Bunny v. Gichuru Kamotho
    (2005) e KLR
  • Geoffrey Mwangi Kihara v. Mwihoko Housing Company Ltd & 3 others
    (2015) e KLR
  • M'Mucheke Kiraithi v. Tyres Mbae Kiraithe & Another
    (2009) e KLR
On appeal from
Kerugoya District Court
Civil Appeal No. 2 of 1972
Jurisdiction invoked
Section 3A of the Civil Procedure Act and the inherent jurisdiction of the High Court; Article 159 of the Constitution as read with Sections 1A and 1B of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Peterson Gichohi & 2 others v Maina Johana Miano alias Joseph Miana Miano [2016] KEELC 1076 (KLR)", Case Analysis (2016). Nyeri Civil Appeal No. 8 of 1973 (abated) - Notices of Motion dated 26th March, 2015 and 27th March, 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1076/eng@2016-03-01

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