[2023] KECA 1609 (KLR)
The court found that the appellant, Japhet Nteere Mwendwa, had died and that the applicant, Fridah Makandi Nteere, had been granted Letters of Administration ad Litem for the deceased's estate. The application for substitution was unopposed, and both parties, through their advocates, consented to the substitution....
Source-derived case information.
- Citation
- [2023] KECA 1609 (KLR)
- Parties
- Appellant: Japhet Nteere Mwendwa; Respondent: Fatuma Mohamud Mohammed Mire; Applicant: Fridah Makandi Nteere
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal (Application) 3 of 2019
- Procedural Posture
- Civil Appeal / Application for Substitution of Appellant Due to Death
- Outcome
- Application for substitution allowed by consent.
- Judges
- J Mohammed
- Legal Topics
- Substitution of Parties, Death of Litigant, Letters of Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Japhet Nteere Mwendwa
Appellant
Fatuma Mohamud Mohammed Mire
Respondent
Fridah Makandi Nteere
Applicant
Procedural Posture
Civil Appeal / Application for Substitution of Appellant Due to Death
Legal Issues
- 1 Whether the court should allow substitution of the deceased appellant with the applicant as legal representative.
- 2 Whether the application for substitution is properly supported and unopposed.
Ratio Decidendi
The court found that the appellant, Japhet Nteere Mwendwa, had died and that the applicant, Fridah Makandi Nteere, had been granted Letters of Administration ad Litem for the deceased's estate. The application for substitution was unopposed, and both parties, through their advocates, consented to the substitution. The court, therefore, allowed the application for substitution in terms of prayer No. 1, substituting the deceased appellant with the applicant as the new appellant. Costs of the application were ordered to abide by the outcome of the appeal.
Court Disposition
Application for substitution allowed by consent.
Orders
- Japhet Nteere Mwendwa is substituted with Fridah Makandi Nteere as the appellant.
- Costs of the application to abide by the outcome of the appeal.
Full Case Text
Judgment text and source record
25 paragraphs
Mwendwa v Mire; Nteere (Applicant) (Civil Appeal (Application) 3 of 2019) [2023] KECA 1609 (KLR) (22 September 2023) (Ruling)
Neutral citation: [2023] KECA 1609 (KLR)
Republic of Kenya
In the Court of Appeal at Nyeri
Civil Appeal (Application) 3 of 2019
J Mohammed, JA
September 22, 2023
Between
Japhet Nteere Mwendwa
Appellant
and
Fatuma Mohamud Mohammed Mire
Respondent
and
Fridah Makandi Nteere
Applicant
(Application under Rule 99 of the Court of Appeal Rules, 2010 for substitution of the appellant in Civil Appeal No. 3 of 2019)
Ruling
1. The Notice of Motion dated 29th July, 2020 was listed for hearing before me. The application is expressed to be brought under Rule 44, 47, 99(1) and 99(3) of the Court of Appeal Rules.
2. The grounds in support of the application are:a.that the appellant herein, Japhet Nteere Mwendwa (the deceased) passed away on 15th September, 2019;b.that the applicant, (Fridah Makandi) has been granted Letters of Administration ad Litem of the Estate of the deceased appellant and is desirous of proceeding with the suit; andc.that no prejudice shall be occasioned if the application is granted.
3. The applicant seeks the following orders:a.that this Court be pleased to substitute Japhet Nteere Mwendwa (the appellant) who is now deceased with Fridah Makandi Nteere who is the deceased’s legal representative; andb.that the costs be in the cause.
4. On the date of hearing, a letter of consent dated 1st March, 2023 was brought to my attention. The terms of the consent were in the following terms:“By consent of the advocates for the appellant and for the respondent, the notice of motion dated 29th June, 2020 be allowed in terms of prayer No. 1. ”
5. In the circumstances, and by consent of counsel for the parties, Japhet Nteere Mwendwa is hereby substituted with Fridah Makandi Nteere as the appellant herein.
6. Costs of the application to abide by the outcome of the appeal.
DATED AND DELIVERED AT NYERI THIS 22ND DAY OF SEPTEMBER, 2023. JAMILA MOHAMMED……………………JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR