[2020] KECA 22 (KLR)
The court determined that since the deceased (Teresa Gesare Kebwaro) had already been struck out from the appeal following a prior application by the 1st appellant, it was procedurally improper to entertain an application to join her legal representative at this stage. The appropriate course of action is to adjourn...
Source-derived case information.
- Citation
- [2020] KECA 22 (KLR)
- Parties
- Appellant: Mbaga Njuguna Ng'ang'a; Appellant: Paul Gathuru Kariuki; Respondent: Republic; Respondent: Registrar of Lands; Respondent: Teresa Gesare Kebwaro (Deceased); Interested Party: Ombui Richard
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 242 of 2015
- Procedural Posture
- Civil Appeal / Ruling on Interlocutory Application for Joinder of Legal Representative After Respondent's Death
- Outcome
- Application adjourned for hearing before the full Court.
- Judges
- AK Murgor
- Legal Topics
- Joinder of Parties, Substitution of Deceased Party, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mbaga Njuguna Ng'ang'a
Appellant
Paul Gathuru Kariuki
Appellant
Republic
Respondent
Registrar of Lands
Respondent
Teresa Gesare Kebwaro (Deceased)
Respondent
Ombui Richard
Interested Party
Procedural Posture
Civil Appeal / Ruling on Interlocutory Application for Joinder of Legal Representative After Respondent's Death
Legal Issues
- 1 Whether the legal representative of a deceased respondent can be joined after the deceased has already been struck out from the appeal.
- 2 What is the appropriate procedure for handling an application for joinder in these circumstances.
Ratio Decidendi
The court determined that since the deceased (Teresa Gesare Kebwaro) had already been struck out from the appeal following a prior application by the 1st appellant, it was procedurally improper to entertain an application to join her legal representative at this stage. The appropriate course of action is to adjourn the application and place it before the full Court for determination, as the matter raises issues that require consideration by a bench rather than a single judge. The court thus declined to grant the joinder at this stage and directed that the Registry prioritize the listing of the application before the full Court.
Court Disposition
Application adjourned for hearing before the full Court.
Orders
- The application for joinder is adjourned for another date to be fixed in the Registry on a priority basis.
- The Registry is directed to place the application before the full Court for hearing and determination.
Full Case Text
Judgment text and source record
31 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: MURGOR, J.A. (IN CHAMBERS)
CIVIL APPEAL NO. 242 OF 2015
BETWEEN
1. MBAGE NJUGUNA NG’ANG’A ........................................1STAPPELLANT
2. PAUL GATHURU KARIUKI..............................................2NDAPPELLANT
AND
1. REPUBLIC.........................................................................1STRESPONDENT
2. REGISTRAR OF LANDS…............................................2NDRESPONDENT
3. TERESA GESARE KEBWARO.....................................3RDRESPONDENT
(An appeal from the judgment of the High Court of Kenya at Nairobi (Odunga, J.) dated 27thMarch 2014
in
H.CCC No. 683 of 2006)
********************
RULING
This Notice of Motion dated 6th February 2020 that is expressed to have been made under rule 85(2) of the Court of Appeal Rules seeks orders;
“That Ombui Richard be enjoined in the suit as the legal Administrator of the Estate of Teresa Gesare Kebwaro (Deceased) as the interested party”
The application is premised on the grounds that Teresa Gesare Kebwaro (Deceased) who was the 3rd respondent in the appeal, died on 12th October 2005 and a Grant of Letters of Administration was issued to Ombui Richard as one of the Administrators of the Estate of the deceased on 23rd January 2014.
However, a review of the record reveals that on 20th January 2020 following an application by the 1st appellant for withdrawal of the appeal against the deceased, this Court struck out the deceased from the appeal.
As such, given that the motion seek to join the legal representative of a deceased whom this Court struck out from the appeal on 20th January 2020, I am of the view that the order that best lends itself to the circumstances of this case is for the motion be adjourned and again placed before the full Court for determination.
Accordingly, in terms of rule 53 (1) of the Court of Appeal rules, the application is adjourned for another date to be fixed in the Registry on a priority basis whereupon the Registry is directed to place this application before the full Court for hearing and determination.
Costs in the application.
DATED and delivered at Nairobi this 4thday of December, 2020.
A. K. MURGOR
…………………………..
JUDGE OF APPEAL
I certify that this is a true
copy of the original.
Signed
DEPUTY REGISTRAR