Irungu (Legal Representative of Irungu Kibe – Deceased) v Kibe (Suing as the Legal Representative of Ruth Njeri Kibe - Deceased) & another (Environment and Land Appeal 22 of 2017) [2024] KEELC 5027 (KLR)
The bottom line
#A Kenyan court revived a land appeal that had stalled when the appellant died, confirming that death does not end a case if the right steps are taken.
What this practically means
#Executive summary
#Key legal issues
#Whether the Court should revive an appeal that abated on the death of the original appellant and substitute his legal representative
The application was merited; the appeal was revived and the legal representative substituted, the applicant having moved expeditiously upon confirmation of the grant
The court invoked its discretion under the proviso to Order 24 Rule 3(2), Order 50 Rule 6 and Section 95 of the Civil Procedure Act, and applied the Court of Appeal's approach in Joseph Kirui v Said K. Keitany, which revived an appeal filed 6½ years late in the interest of substantive justice under Article 159 of the Constitution. The applicant filed the application within weeks of the grant being confirmed on 21st November 2023, so the application was not an abuse of process, and the deceased's interest in the subject land survived his demise.
Whether the application amounted to an abuse of court process given the delay after the appellant's death
No abuse; the delay was attributable to the time taken to obtain letters of administration and the proposed appellant's own conduct
The court accepted the applicant's explanation that substitution awaited the grant of letters of administration to the nominee Margaret Waigwe Irungu, obtained on 9th March 2023 and confirmed on 21st November 2023. The applicant also alleged the proposed appellant obstructed the succession process through her advocates' letter to the Chief. On that basis the court found the application was brought expeditiously and was not vexatious.
Legal principles established
#- The Court has discretion under the proviso to Order 24 Rule 3(2) of the Civil Procedure Rules to revive a suit or appeal that has abated on the death of a party.
- The Court may enlarge time for doing any act even after the expiry of the period allowed, in the interest of substantive justice (Order 50 Rule 6; Section 95 Civil Procedure Act; Article 159 Constitution).
Court orders
#- 1.The Appeal against Irungu Kibe (deceased) is revived
- 2.Margaret Waigwe Irungu, the legal representative of the late Irungu Kibe, is substituted as the Appellant in place of the deceased so the Appeal proceeds to conclusion
- 3.Costs to abide the outcome of the cause
- 4.The matter to be mentioned on 22nd July 2024 for further directions
- On appeal from
- Chief Magistrate's Court, Murang'a
- Appeal dated 31st July 2019 (number not stated)
- Jurisdiction invoked
- Order 24 Rule 3(2) and Order 50 Rule 6 of the Civil Procedure Rules; Section 95 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Irungu (Legal Representative of Irungu Kibe – Deceased) v Kibe (Suing as the Legal Representative of Ruth Njeri Kibe - Deceased) & another (Environment and Land Appeal 22 of 2017) [2024] KEELC 5027 (KLR)", Case Analysis (2024). Notice of Motion dated 13th December 2023 (case number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5027/eng@2024-06-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.