[2023] KECA 1625 (KLR)
The court found that the application for substitution was made more than one year after the death of the respondent, thus the appeal had abated by operation of Rule 102(2) of the Court of Appeal Rules. Furthermore, the letters of administration ad litem obtained by Jecinta Kiura Njeru were limited to a different...
Source-derived case information.
- Citation
- [2023] KECA 1625 (KLR)
- Parties
- Appellant: Njagi Njeru Elias; Respondent: Faustino Njeru Njoka & 21 others; Proposed Respondent: Jecinta Kiura Njeru
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal (Application) 10 of 2020
- Procedural Posture
- Civil Appeal / Ruling on Application for Substitution of Respondent After Death
- Outcome
- application dismissed; appeal abated
- Judges
- AO Muchelule
- Legal Topics
- Substitution of Parties, Abatement of Appeal, Letters of Administration, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Njagi Njeru Elias
Appellant
Faustino Njeru Njoka & 21 others
Respondent
Jecinta Kiura Njeru
Proposed Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Substitution of Respondent After Death
Legal Issues
- 1 Whether Jecinta Kiura Njeru could be substituted as the respondent in the appeal following the death of the original respondent.
- 2 Whether the appeal had abated due to lapse of time under Rule 102(2) of the Court of Appeal Rules.
- 3 Whether the limited grant of letters of administration ad litem covered representation in this appeal.
Ratio Decidendi
The court found that the application for substitution was made more than one year after the death of the respondent, thus the appeal had abated by operation of Rule 102(2) of the Court of Appeal Rules. Furthermore, the letters of administration ad litem obtained by Jecinta Kiura Njeru were limited to a different case (ELC No. E012 of 2021 (O.S.)) and did not authorize her to act as legal representative in the present appeal. As such, there was no legal basis to substitute her as respondent in this matter. The application was dismissed and the appeal marked as abated.
Court Disposition
application dismissed; appeal abated
Orders
- The application for substitution is dismissed.
- The appeal is marked as abated under Rule 102(2) of the Court of Appeal Rules.
Full Case Text
Judgment text and source record
25 paragraphs
Elias v Njoka & 21 others; Njeru (Proposed Respondent) (Civil Appeal (Application) 10 of 2020) [2023] KECA 1625 (KLR) (16 May 2023) (Ruling)
Neutral citation: [2023] KECA 1625 (KLR)
Republic of Kenya
In the Court of Appeal at Nyeri
Civil Appeal (Application) 10 of 2020
AO Muchelule, JA
May 16, 2023
Between
Njagi Njeru Elias
Appellant
and
Faustino Njeru Njoka & 21 others
Respondent
and
Jecinta kiura Njeru
Proposed Respondent
(Being an application under Rule 87 (3) of the Court of Appeal Rules, 2022 for substitution of the appellant In Civil Appeal No. 10 of 2020 Environment & Land Case 71A of 2014 )
Ruling
1. The applicant Njagi Njeru Elias is the appellant in the appeal he filed against the respondent Faustino Njeru Njoka and 21 others from the judgment of the Environment and Land Court at Embu (Y.M. Angima, J) delivered on 26th September 2019 in ELC No. 71A of 2014. While the appeal was pending, the respondent died on 7th October 2021. On 3rd February 2022 this Court dismissed the applicant’s application that sought that the respondent be substituted with Jecinta Kiura Njeru whom he stated was the respondent’s widow and legal representative of his estate. The application was dismissed because it had not been shown that Jecinta Kiura Njeru was the legal representative of the respondent’s estate.
2. The applicant has come back to this court under Rules 42, 44 and 54 of the Court of Appeal Rules seeking similar orders of substitution. In the grounds and supporting affidavit in respect of the Motion dated 24th February 2023, he has stated that he has since come by the evidence that the said Jecinta Kiura Njeru was indeed the respondent’s widow; that on 25th October 2021 in Siakago Principal Magistrate’s Court Succession Cause Misc. No. 82 of 2021, she had successfully petitioned and obtained letters of administration ad litem on the basis that she was the widow of the respondent. She sought the grant to enable her substitute the deceased in ELC No. E012 of 2021 (O.S.) that was pending.
3. This application was not opposed.
4. The respondent died on 7th October 2021. The represent motion was brought on 24th February 2023. This was well over one year following the death. Under Rule 102(2) of this Court’s Rules, the appeal had abated.
5. In any case, the grant issued by the subordinate court was limited only to Jecinta Kiura Njeru substituting the respondent in ELC No. E012 of 2021 (O.S.). The representation did not relate to this appeal, or to any other case. There is therefore no evidence that Jecinta Kiura Njeru is the legal representative of the respondent’s estate for the purposes of this appeal, or at all.
6. Consequently, I dismiss the application. Further, it is ordered that, under Rule 102(2), this appeal has abated, and shall be marked as such.
DATED AND DELIVERED AT NYERI THIS 16TH DAY OF MAY 2023I certify that this is a true copy of the originalSignedDEPUTY REGISTRARA.O. MUCHELULE……………………………JUDGE OF APPEAL