The nature of locus standi required in order to apply for the revival of an abated suit at the Court of Appeal.

Elizabeth Wanjiru Njenga & another v Margaret Wanjiru Kinyara & 2 others

Civil Appeal (Application) No 30 of 2005

Court of Appeal at Nairobi

P N Waki, S Gatembu Kairu & K M'Inoti, JJA

November 23, 2018

Reported by Beryl A Ikamari

Civil Practice and Procedure- abatement of suits-abatement of suits by death-abatement of a suit at the Court of Appeal-revival of an abated suit at the Court of Appeal-locus standi to apply for the revival of an abated suit-whether a person who was not a legal representative of the deceased could apply for the revival of an abated suit-Appellate Jurisdiction Act (Cap 9), sections 3A & 3B; Court of Appeal Rules 2010, rule 99.

Civil Practice and Procedure-parties to a suit-substitution of parties to a suit-death of a party to an appeal at the Court of Appeal-whether a person who was not the deceased's legal representative could be made a party in place of the deceased-Court of Appeal Rules 2010, rule 99.

Brief facts

At the High Court, the appellant's application sought revival of their appeal against the 1^st respondent who was deceased and the substitution of that respondent with John Wainaina Wanjiru who was said to be the sole surviving son and heir of the deceased. The High Court dismissed the application.

The deceased's father was registered as the proprietor of the suit premises. The deceased had one brother and a sister. Upon her father's death in 1972, her brother, Peter Njenga Kinyara, as an only son, got registered as the proprietor of the land. After the death of Peter Njenga Kinyara, the High Court issued a grant of letters of administration to his widow Elizabeth Wanjiru Njenga, David Karanja Njenga and John Wainaina Njenga on September 26, 2000 in Nairobi High Court Succession Cause No. 1610 of 2000.

Margaret Wanjiru Kinyara, the deceased, filed summons for revocation or annulment of grant on grounds that there had been material concealment of facts in that her deceased brother, Peter Njenga Kinyara, held the property in trust and she was entitled to a share of the deceased's assets. She said that she resided on the land and had undertaken extensive developments on it. On September 17, 2004, the High Court ruled that she had a beneficial interest in a third of the property in question which had been occupied by her mother and that interest should be noted in the grant of letters of administration relating to the estate of Peter Njenga Kinyara.

Two of the administrators lodged an appeal against the decision. In the appeal, the deceased, was the 1^st respondent and the two administrators namely, Elizabeth Wanjiru Njenga and David Karanja Njenga, were the appellants. When the 1^st respondent died they unsuccessfully sought the revival of the appeal and the substitution of the 1^st respondent with her son. The High Court stated that they had no locus standi to apply for the revival of an abated appeal and that the only person who could do so was a legal representative of the deceased.

Issues

1. Who had locus standi to apply for the revival of an abated appeal at the Court of Appeal?
2. What was the difference between the revival of an abated application and the revival of an abated appeal under the Court of Appeal Rules 2010?
3. What was the effect of the overriding objectives recognized in section 3A and 3B of the Appellate Jurisdiction Act, in the exercise of discretion by the Court?
4. Whether a person who was not the legal representative of a deceased person could be substituted in place of a deceased person in a succession cause.

Relevant provisions of the law

Court of Appeal Rules 2010, rule 99;

99. Death of party to appeal

(1) An appeal shall not abate on the death of the appellant or the respondent but the Court shall, on the application of any interested person, cause the legal representative of the deceased to be made a party in place of the deceased.

(2) If no application is made under sub-rule (1) within twelve months from the date of death of the appellant or respondent, the appeal shall abate.

(3) The person claiming to be the legal representative of a deceased party to an appeal may apply for an order to revive an appeal which has abated; and, if it is proved that the legal representative prevented by sufficient cause from continuing the appeal, the court shall revive the appeal upon such terms as to costs or otherwise as it deems fit.

Held

1. Under rule 99(3) of the Court of Appeal Rules 2010, the only person that could apply for the revival of the appeal after it abated upon the expiry of 12 months from the time of death of the 1^st respondent was her legal representative. Therefore, a question arose as to whether the appellants had locus standi to apply for the revival of an abated appeal.
2. In dismissing the appellant's application, the High Court was exercising discretion. For the Court of Appeal to interfere with such a decision it would have to be shown that the High Court failed to consider relevant factors or considered irrelevant factors in reaching at its decision or that its decision was plainly wrong.
3. Prior to the enactment of the Court of Appeal Rules 2010, there was no specific rule dealing with revival of abated appeals. Under rule 51(4) of the Court of Appeal Rules 2010, any interested person could apply to revive an application that had abated but under rule 99(3) of the same rules only a person claiming to be the legal representative of a deceased party to an appeal could apply for revival of an appeal. There was no rational basis as to why the right to apply for revival of an appeal and substitution of a deceased party to the appeal was not extended under rule 99(3) to any interested person but was limited to the person claiming to be the legal representative to a deceased person. Similarly, there was no rational basis as to why any interested person would be at liberty or entitled to apply for substitution of a deceased party to the appeal within 12 months of the death of such party but lose the right to do so upon abatement of the appeal 12 months following the death of a party.
4. Amendments made to the rules to cater for revival of abated applications and appeals, were intended to avoid injustice that innocent litigants or other relevant parties could suffer through no fault of their own. It was doubtful that the Rules Committee intended that an application to revive an abated application could be made by any interested person and application to revive an abated appeal could only be made by the legal representative of the deceased party.
5. One of the overriding objectives under section 3A of the Appellate Jurisdiction Act was to facilitate just, expeditious, proportionate and affordable resolution of appeals. For purposes of furthering those objectives, the Court was required, under section 3B of the Act, to handle matters with the aim of, among other things, just determination of proceedings. It was apparent that the High Court did not consider the import of such provisions in exercising discretion.
6. The application for revival of the appeal was made approximately a year and 7 months after the death of the 1^st respondent. At that point the appeal had abated given that it was in excess of 12 months after the death of the deceased. The delay in filing the application for revival of the appeal was therefore explained and was not in the circumstances inordinate. Had the High Court applied the overriding principles to the circumstances, the Court would have arrived at a different conclusion.
7. John Wainaina Wanjiru, the son of the 1^st respondent, was not the legal representative of the 1^st respondent. The High Court, to that extent, could not be faulted for declining to accede to the request to substitute him for the deceased.
8. The Grant of Probate of Written Will of the deceased issued by the High Court in Succession Cause No. 1075 of 2012 indicated that the 1^st respondent's personal representatives were Margaret Wanjiru Wainaina and Eunice Wangari Mwangi. Consequently, Margaret Wanjiru Wainaina and Eunice Wangari Mwangi should be made parties to the appeal in place of the 1^st respondent.

Appeal allowed.

Orders:-

1. The appeal was revived.
2. The appellants were ordered, within 14 days from the date of delivery of the ruling, to file and serve an amended record of appeal reflecting the substituted parties in accordance with the ruling and in accordance with the orders of the Court given on November 5, 2015. Thereafter, the appeal shall be fixed for hearing on basis of priority.
3. The costs of the reference were to be costs in the appeal.

East Africa;

Cases

1.Abok James Odera T/A A.J Odera & Associates v JohnPatrick Machira T/A Machira & Co Advocates Civil Appeal No 161 of 1999 [2013] eKLR- (Explained)

2.Gitiha, Stephen Boro v Family Finance Building Society & 3 others Civil Application 263 of 2009 (UR 183/09) [2009] eKLR – (Cited)

3.Harit Sheth t/a Harit Sheth Advocate v Shamas Charania Civil Application No 68 of 2008 [2010] eKLR-(Cited)

4.Michoki, Hezekiah v Elizaphan Onyancha Ombongi, Civil Application No NAI 4 of 2009[2015] eKLR-(Followed)

5.Mwabumba, Issa Masudi v Alice Kavenya Mutunga & 4 others Civil Appeal 287 of 2006 [2012] eKLR – (Explained)

6.Nduati, Nyoike v Republic Civil Appliication Nai 292 of 2003 (NYR 13/2003) [2008] eKLR- (Explained)

7.Pauline Wambui Ngari v John Kairu & another Civil Appeal (Appli) 123 Of 2005  [2009] eKLR – (Explained)

8.Vyatu Limited & another v Public Trustee, Nyanza Province Civil Application No Nai 218 of 2003 (Ksm 30/2003) [2003] eKLR-(Explained)

9.Waluke, John Koyi v Moses Masika Wetangula and 2 others; CA (Application) No 307 of 2009[2010] eKLR – (Mentioned)

10Wang’ombe, Gachihi  v James Muriuki & another Civil Appeal No 155 of 2005 [2011] eKLR – (Explained)

East Africa;

Statutes

1.Constitution of Kenya, 2010 articles 159(2) (d) – (Interpreted)

2.Appellate Jurisdiction Act (cap 9) sections 3A 3B –(Interpreted)

3.Court of Appeal Rules,2010 (cap 9 Sub Leg) rules 51(4); 55(2); 99(3) –(Interpreted)

4.Court of Appeal Rules, 1972  (Repealed) (cap 9) rule 96 –(Interpreted)

Advocates

1. Mr G B Akello for the Applicants

2. Mr Amuga for the1^st Respondent

3. Mr T L Murage for the 2^nd and 3^rd Respondents

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Criminal law - preparation to commit a felony contrary to section 308 (2) of the Penal Code - accused person convicted and sentenced to imprisonment for 5 years with hard labour - additional conviction for being in possession of firearm without a firearm certificate and being in possession of 9 rounds of ammunitions in without a firearm certificate and sentenced to 7 years imprisonment respectively - sentences on the three counts ordered to run concurrently - appeal against conviction and sentence - CRIMINAL PROCEDURE - charge - form of charge - defective charge - charge for the offence of intention to commit a felony failing to disclose the felony which it was suspected the accused intended to commit - particulars of the charge disclosing a different offence from the one charged - whether the charge was proper - whether a conviction based on that charge is proper.

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[RULING] Civil Procedure - extension of time - application for extension of time to file and serve record of Appeal