[2000] KECA 53 (KLR)
The Court held that Rule 83(2) of the Court of Appeal Rules clearly empowers the legal representatives of a deceased party to be joined in place of the deceased, regardless of whether the deceased had been made a party to the appeal before death. The objections raised by the respondents were found to be without...
Source-derived case information.
- Citation
- [2000] KECA 53 (KLR)
- Parties
- Applicant: Henry Waithaka Gitu; Applicant: Jeremiah Wilson Mwaura; Respondent: Samuel Ndungu Gitu; Respondent: Danson Ndung'u; Respondent: Mathew Ngichabe Sisenda; Respondent: Mary Mwayitsi Sisenda
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal (Application) 304 of 1997
- Procedural Posture
- Civil Appeal / Ruling on Application to Join Parties and Extend Time for Service
- Outcome
- application allowed
- Judges
- AM Akiwumi
- Legal Topics
- Joinder of Parties, Substitution of Deceased Party, Extension of Time, Service of Notice of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Henry Waithaka Gitu
Applicant
Jeremiah Wilson Mwaura
Applicant
Samuel Ndungu Gitu
Respondent
Danson Ndung'u
Respondent
Mathew Ngichabe Sisenda
Respondent
Mary Mwayitsi Sisenda
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Join Parties and Extend Time for Service
Legal Issues
- 1 Whether the applicants, as legal representatives of the deceased, should be joined as respondents in the appeal.
- 2 Whether the appellant should be ordered to serve the Notice of Appeal and Record of Appeal on the applicants within specified timeframes.
- 3 Whether objections to the joinder and service are valid under the relevant Court of Appeal Rules.
Ratio Decidendi
The Court held that Rule 83(2) of the Court of Appeal Rules clearly empowers the legal representatives of a deceased party to be joined in place of the deceased, regardless of whether the deceased had been made a party to the appeal before death. The objections raised by the respondents were found to be without merit, as the Rules do not require the legal representatives to file a notice of appeal themselves, nor do they impose a precondition that the deceased must have been a party to the appeal prior to death. The Court further noted that the appellant was already directed to serve the Notice of Appeal on the applicants and had failed to do so, but no order as to costs would be made for...
Court Disposition
application allowed
Orders
- Applicants are joined as respondents in the appeal in their capacities as legal representatives of the deceased, Wilson Gitu Njuguna.
- Appellant to serve the Notice of Appeal on the applicants within 7 days from the date of the ruling.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL OF KENYA AT KISUMU CIVIL APPEAL (APPLI) 304 OF 1997
HENRY WAITHAKA GITU .....................................................................IST APPLICANT
JEREMIAH WILSON MWAURA ........................................................2ND APPLICANT
AND
SAMUEL NDUNGU GITU ................................................................. IST RESPONDENT
DANSON NDUNG'U......................................................................... 2ND RESPONDENT
MATHEW NGICHABE SISENDA ............................................... 3RD RESPONDENT
MARY MWAYITSI SISENDA ........................................................ 4TH RESPONDENT
(Being an application to join the applicants as parties in the Appeal in their capacities as legal representatives of the later Wilson Gitu Njuguna and to extend time to serve Notice of Appeal and Record of Appeal on the applicants in the Appeal from judgment of the High Court of Kenya at Kakamega, (Justice B. Tanui) dated 11th July, 1997
in
H.C.C.C. No.110 of 1988 (O.S)
********************
RULING
The present application by the applicants who are the legal representatives of the deceased who was the first defendant in the suit before the superior court and who died after giving evidence but before judgment was given by the superior court, to be joined as respondents in the appeal filed by the respondent herein, must succeed. The application which is brought under Rule 83(2) enables the legal representatives of the deceased which the applicants undoubtedly are, to be made a party in place of the deceased. This Rule is not dependent on Rule 77 which merely provides that a Notice of Appeal shall not be incompetent by reason only that the intended respondent is dead at the time when it was lodged and that it shall be served as soon as practible on his legal representatives, in this case, the applicants. This is what the appellant should now do if he has not yet done so. Indeed, this is what this Court on 18th June, 1999, requested the appellant to do and awarded costs against him.
The objection to the present application that the applicants who are intended appellants, but rather respondents in the appeal, should have filed a notice of appeal, is therefore not applicable. Similarly, the objection that the applicants can only apply to be made a party to the appeal only if the deceased had been made a party to the appeal before his death, is, having regard to the clear provisions of Rule 83(2) which does not mandate such a precondition, flawed.
In the result, the application succeeds and the applicants are hereby joined in their capacities as legal representatives of the deceased, Wilson Gitu Njuguna, as respondents in the appeal from the judgment of Tanui, J. delivered on 11th July, 1997 in Civil Case No.110 of 1988 (O.S) and as such, shall be served with the Notice of Appeal by the appellant in that appeal within 7 days from today and with a Record of Appeal within 30 days from the service of the Notice of Appeal.
In my view, and having regard to the Ruling of this Court on 18th June, 1999, already referred to, the appellant in the appeal should have served the notice of appeal on the applicants by now, but has rather taken an obstinate stand on the matter. I will, however, make no order as to costs in respect of the present application.
Dated and delivered at Kisumu this 20th day of March, 2000.
A.M. AKIWUMI
...............
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR