[2009] KEHC 1285 (KLR)
Despite finding the applicant's explanation for delay unconvincing, the court exercised its discretion to revive the appeal and allow substitution because the outcome of the appeal would directly affect the estate of the deceased. The court considered that the subordinate court had found the disputed plot belonged...
Source-derived case information.
- Citation
- [2009] KEHC 1285 (KLR)
- Parties
- Appellant: Gerald Njue Kamuranga; Respondent: Njiru Njogu
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 113A of 2007
- Procedural Posture
- Civil Appeal / Ruling on Application for Revival and Substitution
- Outcome
- Application for revival and substitution allowed.
- Judges
- J Karanja
- Legal Topics
- Revival of Suit, Substitution of Parties, Lapse of Action on Death, Discretion of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gerald Njue Kamuranga
Appellant
Njiru Njogu
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Revival and Substitution
Legal Issues
- 1 Whether the appeal should be revived after abatement due to the death of the 2nd respondent.
- 2 Whether the applicant should be substituted in place of the deceased 2nd respondent.
Ratio Decidendi
Despite finding the applicant's explanation for delay unconvincing, the court exercised its discretion to revive the appeal and allow substitution because the outcome of the appeal would directly affect the estate of the deceased. The court considered that the subordinate court had found the disputed plot belonged to the deceased, and thus, the estate's interests would be prejudiced if the appeal proceeded without proper representation. Therefore, in the interests of justice, the application for revival and substitution was allowed.
Court Disposition
Application for revival and substitution allowed.
Orders
- The application dated 30/6/2009 is allowed.
- The prayers sought in the application are granted.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU
Civil Appeal 113A of 2007
GERALD NJUE KAMURANGA……………………………APPELLANT
VERSUS
NJIRU NJOGU………………………………………1ST RESPONDENT
RULING
The application before me is seeking 2 prayers in the revival of this appeal and the substitution of the applicant in place of the 2nd Respondent Stanley Nyaga Paul who is since deceased. The deceased is said to have died in January 2004 and so the case against him automatically lapsed by operation of Order XXIII Rule 4 (3) C. P Rules on 17/1/2005. The applicant says she did not come to court sooner due to financial difficulties. I have considered the explanation she has given but I do not find the same convincing in the least. I have nonetheless perused the Judgment appealed against and I note that the subordinate court made a finding that the disputed plot belonged to the deceased. In the event therefore that the appeal succeeds, the deceased’s estate would be adversely affected. It is purely for that reason that I will exercise my discretion in her favour and allow this application. Consequently, I allow the application dated 30/6/2009 and allow the prayers sought with costs in the cause.
W. KARANJA
JUDGE
Delivered, signed and dated at Embu this 3rd day of Nov 2009.
In presence of:-Mr Okwaro for Mr. Mugambi and 1st Respondent.