[2020] KECA 286 (KLR)
The court found that the application for substitution was unopposed and satisfied the requirements under the Court of Appeal Rules. The absence of any opposition from the respondents and the proper procedural compliance by the applicant led the court to conclude that the application was meritorious. Consequently,...
Source-derived case information.
- Citation
- [2020] KECA 286 (KLR)
- Parties
- Applicant: James Ndegwa Thuku; Respondent: Joreth Limited; Respondent: Ashera Holdings Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal (Application) 45 of 2020
- Procedural Posture
- Civil Appeal / Application for Substitution of Appellant Due to Death
- Outcome
- Application allowed; applicant substituted as appellant; costs to abide outcome of appeal.
- Judges
- RN Nambuye
- Legal Topics
- Substitution of Parties, Appeal Procedure, Death of Litigant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Ndegwa Thuku
Applicant
Joreth Limited
Respondent
Ashera Holdings Limited
Respondent
Procedural Posture
Civil Appeal / Application for Substitution of Appellant Due to Death
Legal Issues
- 1 Whether the legal representative of the deceased appellant should be substituted as the appellant in the pending appeal.
- 2 Whether the application for substitution is meritorious in the absence of opposition from the respondents.
Ratio Decidendi
The court found that the application for substitution was unopposed and satisfied the requirements under the Court of Appeal Rules. The absence of any opposition from the respondents and the proper procedural compliance by the applicant led the court to conclude that the application was meritorious. Consequently, the court allowed the substitution of Ann Mirigo as the appellant in place of the deceased, James Ndegwa Thuku, and ordered that the costs of the application abide the outcome of the appeal.
Court Disposition
Application allowed; applicant substituted as appellant; costs to abide outcome of appeal.
Orders
- Prayer (1) of the unopposed application dated 4th May, 2020 is allowed: Ann Mirigo is substituted as the appellant in Civil Appeal No. 45 of 2020.
- Costs of the application to abide the outcome of appeal No. 45 of 2020.
Full Case Text
Judgment text and source record
29 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: NAMBUYE, J.A (IN CHAMBERS)
CIVIL APPEAL (APPLICATION) NO. 45 OF 2020
BETWEEN
JAMES NDEGWA THUKU ................................................APPLICANT
AND
JORETH LIMITED...................................................1STRESPONDENT
ASHERA HOLDINGS LIMITED ...........................2NDRESPONDENT
(An appeal from the Judgment of the Environment and Land Court (Hon. Bor, J.) dated 13thDecember 2019
in
Milimani ELC No. 1027 of 2012)
**********************
RULING OF THE COURT
1. UPONperusing the Notice of Motion dated 4th May 2020 by the Appellant/Applicant, under Rules 99(1) and 42(1) of this Court’s Rules, substantively seeking an order that the Applicant Ann Mirigo, the legal representative of James Ndegwa Thuku, now deceased, be substituted as the appellant in Civil Appeal No. 45 of 2020; and an order that costs of the application do abide the outcome of Civil Appeal No. 45 of 2020; and
2. UPONreading the grounds in the body of the application and the supporting affidavit of Ann Mirigo, sworn on 4th of May 2020 in support of the application together with annextures thereto; and
3. UPONnoting that there is no replying affidavit by the respondent in opposition to the application despite service upon them of the hearing notice by the registrar of the Court on Friday, 2nd October 2020; and
4. HAVINGconsidered the threshold for granting relief under the cited rules of this court, I am satisfied that the applicant’s unopposed application is meritorious; and
5. HAVINGreached that conclusion, I make the following orders:
(i) Prayer (1) of the unopposed application dated 4thMay, 2020 be and is hereby allowed.
(ii) Costs of the application to abide the outcome of appeal No. 45 of 2020.
Dated and delivered at Nairobi this 9thday of October, 2020.
R. N. NAMBUYE
...................................
JUDGE OF APPEAL
I certify that this is a true
copy of the original.
Signed
DEPUTY REGISTRAR