Gichanga v Kiarie (For and on Behalf of the Estate of Onesmus Mwenje and Phylis Nyambura Kinyanjui) & another (Environment and Land Appeal 41 of 2020) [2024] KEELC 4978 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the alleged typographic error in the Appellant's name constituted a mistake or error apparent on the face of the record
It did not; the appeal was struck out for lack of capacity of the Appellant (being deceased), not for misdescription of a party, and counsel's averments required examination of matters outside the record
Applying Mativo J's test, an error apparent must be self-evident from the record without detailed examination or debate. Here the court's finding rested on the appellant's death before filing, which was on the record. Blaming the former advocates for the misdescription was outside the scope of review.
Whether the appeal could be revived under Order 24 of the Civil Procedure Rules
No; Order 24 governs abatement and revival of subsisting suits, but here there was no competent appeal from the outset, and the Dorothy Mumbua case was distinguishable on its facts
Order 24 presupposes a valid cause of action surviving a party's death. Since the purported Appellant died on 27/6/2018 and the appeal was filed on 12/10/2020 by a dead person, there was nothing capable of abatement or revival. The suit was a nullity ab initio.
Legal principles established
#- The power of review must be exercised within the framework of Section 80 of the Civil Procedure Act as read with Order 45 Rule 1 of the Civil Procedure Rules, 2010, hinged on discovery of new and important matter, error apparent on the face of the record, or any other sufficient reason
- A suit filed in the name of a deceased person is a nullity and is incurably bad; no order is needed to set it aside
Court orders
#- 1.The application dated 13/10/2023 is dismissed
- 2.Costs of the application awarded to the 2nd Respondent, to be borne by the Applicant's Counsel Vincent Makori
- On appeal from
- Chief Magistrate's Court, Kiambu
- CMCC (record not stated)
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act as read with Order 45 Rules 1 & 2 and Order 51 Rule 4 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gichanga v Kiarie (For and on Behalf of the Estate of Onesmus Mwenje and Phylis Nyambura Kinyanjui) & another (Environment and Land Appeal 41 of 2020) [2024] KEELC 4978 (KLR)", Case Analysis (2024). Review Application dated 13/10/2023 in Appeal No. 41 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4978/eng@2024-06-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.