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ELCPartially AllowedNot stated in judgment (application dated 7th February 2020, arising from CMCC No. 296 of 2012)· [2021] KEELC 2108 (KLR)

Octavio Ndambiri & 4 others v Simon Gachoki Mugo [2021] KEELC 2108 (KLR)

Environment and Land Court
23 July 2021
ECE.C. CHERONO
3,351 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court let a family continue a land appeal after an appellant died, but refused to let them add new evidence to fix a weak case.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kerugoya (E.C. Cherono, ELC Judge) delivered on 23rd July 2021 on a Notice of Motion dated 7th February 2020 by Cyrus Kathiru Magondu, the holder of a limited grant ad litem over the estate of the deceased 4th Appellant, Jaeli Warigia Magondu. The Applicant sought leave to substitute the deceased appellant, reinstatement of stay orders issued on 15th February 2019 on condition the appeal be heard within six months, extension of that period, and leave to introduce additional evidence (a green card for parcel BARAGWE/GUAMA/410) with the supplementary record of appeal deemed duly filed. The Respondent opposed, arguing the appeal had abated, the six-month period had lapsed without explanation, and the green card related to a different parcel from plot No. 6 Karumandi which was the subject of the magistrate's court suit. The court allowed substitution, holding the land claim survived the deceased under section 2(1) of the Law Reform Act and the application was filed within one year under Order 24 Rule (3) CPR. It reinstated and extended the stay orders pending hearing of the appeal, finding the death of the 4th Appellant a sufficient explanation for the delay. However, applying the additional-evidence thresholds in Dorothy Nelima Wafula and Mzee Wanje v A.K. Saikwa, it declined the prayer to admit fresh evidence, holding the Applicant sought to import newly discovered material to patch up weak points in a case lost at trial, and struck out the supplementary record of appeal. Costs were ordered to abide the event.

Key legal issues

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01

Substitution of a deceased appellant

Holding

Substitution allowed; the land claim survived the deceased's estate under section 2(1) of the Law Reform Act and the application was filed within one year as required by Order 24 Rule (3) CPR

Reasoning

The claim concerned ownership of a parcel of land, a cause of action that survives for the benefit of the deceased's estate under section 2(1) of the Law Reform Act. The Applicant held a Limited Grant Ad Litem issued on 29th October 2019 and filed the substitution application on 7th February 2020, within the one-year window under Order 24 Rule (3) CPR, so the prayer was merited.

p. 5
02

Reinstatement of lapsed stay orders and extension of time to hear the appeal

Holding

Reinstatement and extension granted; the demise of the 4th Appellant satisfactorily explained the delay in setting the appeal down

Reasoning

The Applicant filed the record of appeal within three months of the conditional stay. The 4th Appellant died ten days after the record was filed, and the delay in substitution was attributable to obtaining the death certificate and the limited grant. The court found this a sufficient explanation for reinstating the stay and extending the time to hear the appeal.

p. 5
03

Admission of additional evidence on appeal under Order 42 Rule 27 CPR

Holding

Refused; the newly discovered green card was an attempt to import fresh evidence to patch up weak points in a lost case

Reasoning

Applying the thresholds in Dorothy Nelima Wafula and Mzee Wanje, the court found the green card for BARAGWE/GUAMA/410 was discovered after trial and did not satisfy the 'sufficient reason' threshold. The parties litigated over plot No. 6 Karumandi as an unregistered parcel, and the newly discovered document could not be introduced to make a fresh case on appeal.

p. 5

Legal principles established

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  • On the death of any person, all causes subsisting against or vested in him survive against, or for the benefit of, his estate, except for causes of action for defamation, seduction, inducing a spouse to leave, or claims for damages on grounds of adultery
  • A party who discovers fresh evidence after trial cannot import it on appeal to patch up weak points in his case; additional evidence must satisfy the diligence, importance and credibility thresholds
  • An application for substitution of a deceased party made within one year of death under Order 24 Rule (3) CPR is in time and merited

Court orders

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  1. 1.The Applicant, CYRUS KATHIRU MAGONDU is allowed to substitute the 4th Appellant, JAELI WARIGIA MAGONDU
  2. 2.The orders of stay issued on 15th February 2019 are reinstated and extended until the hearing and determination of the Appeal
  3. 3.The application for additional evidence in the Appeal is declined
  4. 4.The supplementary record of Appeal dated 5th September 2019 is struck out
  5. 5.The costs of the application shall abide the event

Authorities

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Legislation

  • Civil Procedure RulesOrder 24 Rules 1 and 3
  • Civil Procedure RulesOrder 42 Rule 27
  • Law Reform ActCap. 26, section 2(1)
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (4)

  • Attorney General Vs Torino Enterprises Limited
    (2019) e K.L.R
  • Mohammed Abdi Mahamud Vs Ahmed Abdullahi Mohamed & 3 Others
    (2018) e K.L.R
  • Dorothy Nelima Wafula Vs Hellen Nekesa Nielsen and Paul Fredrick Nelson
    (2017) e K.L.R
  • Mzee Wanje & 93 Others Vs A.K. Saikwa
    (1983 – 88) 1 K.A.R 463
On appeal from
Magistrate's Court (CMCC No. 296 of 2012)
296 of 2012
Jurisdiction invoked
Appellate jurisdiction under the Civil Procedure Rules (Order 24 and Order 42) and the Law Reform Act Cap. 26

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Octavio Ndambiri & 4 others v Simon Gachoki Mugo [2021] KEELC 2108 (KLR)", Case Analysis (2021). Not stated in judgment (application dated 7th February 2020, arising from CMCC No. 296 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2108/eng@2021-07-23

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