[2023] KECA 537 (KLR)
The court found that Emmanuel Malenya had provided sufficient evidence of the death of the original appellant, Enock Irungu Malenya, and had obtained a limited grant of letters of administration ad litem. The application for substitution was unopposed and the procedural error in citing the wrong rules was not fatal...
Source-derived case information.
- Citation
- [2023] KECA 537 (KLR)
- Parties
- Applicant: Emmanuel Malenya; Respondent: Benson Irungu Mbaria; Respondent: Muchangi Nduati Ngingo
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal (Application) 167 of 2006
- Procedural Posture
- Civil Appeal / Application for Substitution of Deceased Appellant
- Outcome
- Application allowed; applicant substituted as appellant.
- Judges
- KI Laibuta
- Legal Topics
- Substitution of Parties, Death of Litigant, Appeals Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Emmanuel Malenya
Applicant
Benson Irungu Mbaria
Respondent
Muchangi Nduati Ngingo
Respondent
Procedural Posture
Civil Appeal / Application for Substitution of Deceased Appellant
Legal Issues
- 1 Whether Emmanuel Malenya should be substituted as appellant in place of the deceased Enock Irungu Malenya.
- 2 Whether the application for substitution is properly brought before the court despite citation errors.
Ratio Decidendi
The court found that Emmanuel Malenya had provided sufficient evidence of the death of the original appellant, Enock Irungu Malenya, and had obtained a limited grant of letters of administration ad litem. The application for substitution was unopposed and the procedural error in citing the wrong rules was not fatal to the application. The court exercised its discretion under rule 102 of the Court of Appeal Rules to allow the substitution in the interests of justice.
Court Disposition
Application allowed; applicant substituted as appellant.
Orders
- Emmanuel Malenya is substituted as appellant in place of the deceased Enock Irungu Malenya.
- No order as to costs.
Full Case Text
Judgment text and source record
20 paragraphs
Malenya v Mbaria & another (Civil Appeal (Application) 167 of 2006) [2023] KECA 537 (KLR) (12 May 2023) (Ruling)
Neutral citation: [2023] KECA 537 (KLR)
Republic of Kenya
In the Court of Appeal at Nairobi
Civil Appeal (Application) 167 of 2006
KI Laibuta, JA
May 12, 2023
Between
Emmamuel Malenya
Applicant
and
Benson Irungu Mbaria
1st Respondent
Muchangi Nduati Ngingo
2nd Respondent
(Being an application to substitute the applicant, Emmanuel Malenya for the deceased appellant, Enock Irungu Malenya, in the appeal from the Judgment and Decree of the High Court of Kenya at Nairobi (Mugo, J.) dated 16th June 2006) in H.C.C.A No. 2213 of 2016)
Ruling
1. By a Notice of Motion dated March 4, 2023 and erroneously made under Order 24 rule 10 and Order 51 rule 1 of the Civil Procedure Rules, 2010 (which relate to death and bankruptcy of parties, and to the form of applications in lower courts respectively), Emmanuel Malenya prays for: an order allowing him to be made party to the appeal in place of the deceased appellant, who died on June 15, 2021, and proceed to execute the judgment and orders made on March 25, 2015 in the appeal herein; and that the costs of this application be in the cause.
2. Having read Emmanuel Malenya’s Motion and the grounds on which it is made, his supporting affidavit sworn on March 4, 2023, the annexed certificate of death of Enock Irungu Malenya (the appellant herein), the Limited Grant of Letters of Administration Ad Litem issued to Emmanuel Malenya on January 13, 2023 and appreciate their self-explanatory contents; and having considered the written submissions of learned counsel for the applicant; and having further noted that Emmanuel Malenya’s Motion is not opposed, The Notice of Motion dated March 4, 2023 is hereby allowed in accordance with rule 102 of the Court of Appeal Rules. There be no orders as to costs.
DATED AND DELIVERED AT NAIROBI THIS 12TH DAY OF MAY, 2023. DR. K. I. LAIBUTA......................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR