[2025] KECA 562 (KLR)

Source-derived case information.

Citation: [2025] KECA 562 (KLR)
Parties: Applicant: Dishon Mareko Mwa Ngine; Applicant: Nyaga Burana; Applicant: Naaman Ireri Signana; Applicant: Ezekiel Ndara; Applicant: Gilbert Kiura Mathoroko; Respondent: Francis Njeru Njoka; Respondent: Faustino Njeru Njoka
Court: Court of Appeal
Court Station: Court of Appeal at Nyeri
Jurisdiction: Kenya
Case Number: Civil Appeal (Application) E141 of 2022
Procedural Posture: Civil Appeal / Application for Revival of Abated Appeal and Substitution of Deceased Respondent
Outcome: Application allowed. Appeal revived and substitution of deceased respondent granted. No order as to costs.
Judges: S ole Kantai
Legal Topics: Abatement of Appeal, Revival of Appeal, Substitution of Parties, Extension of Time
Source Language: en

Civil Procedure Abatement of Appeal Revival of Appeal Substitution of Parties Extension of Time

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Parties

Dishon Mareko Mwa Ngine

Applicant

Nyaga Burana

Applicant

Naaman Ireri Signana

Applicant

Ezekiel Ndara

Applicant

Gilbert Kiura Mathoroko

Applicant

Francis Njeru Njoka

Respondent

Faustino Njeru Njoka

Respondent

Procedural Posture

Civil Appeal / Application for Revival of Abated Appeal and Substitution of Deceased Respondent

Legal Issues

1 Whether the appeal should be revived after abatement due to failure to substitute a deceased respondent within the prescribed time.
2 Whether the applicants have provided sufficient explanation for the delay in filing the application for substitution.
3 Whether the representatives of the deceased respondent's estate should be substituted as parties to the appeal.

Ratio Decidendi

The court found that the applicants provided a reasonable explanation for their failure to file the substitution application within the 60-day period, namely the advanced age of the 3rd applicant and the time required to obtain the Certificate of Confirmation of Grant for the deceased respondent's estate. The court exercised its discretion to revive the appeal and allow substitution of the deceased respondent with his personal representatives, holding that the interests of justice would be served by permitting the matter to proceed on its merits. No order was made as to costs.

Court Disposition

Application allowed. Appeal revived and substitution of deceased respondent granted. No order as to costs.

Orders

The appeal is revived.
Mary Nthuraku Njeru and Inyasio Mwaniki Ngari are substituted as representatives of the Estate of Francis Njeru (deceased) in place of the 2nd respondent.

Full Case Text

Judgment text and source record

28 paragraphs

Ngine & 4 others v Njoka & another (Civil Appeal (Application) E141 of 2022) [2025] KECA 562 (KLR) (28 March 2025) (Ruling)

Neutral citation: [2025] KECA 562 (KLR)

Republic of Kenya

In the Court of Appeal at Nyeri

Civil Appeal (Application) E141 of 2022

S ole Kantai, JA

March 28, 2025

Between

Dishon Mareko Mwa Ngine

1st Applicant

Nyaga Burana

2nd Applicant

Naaman Ireri Signana

3rd Applicant

Ezekiel Ndara

4th Applicant

Gilbert Kiura Mathoroko

5th Applicant

and

Francis Njeru Njoka

1st Respondent

Faustino Njeru Njoka

2nd Respondent

Ruling

1. By Motion on notice brought under section 3A and 3B of the Appellate Jurisdiction Act, rules 4, 87 and 102 of the Court of Appeal Rules and all other enabling provisions of law the applicants pray that I be pleased to revive this appeal which abated on 9th June, 2024 following the lapse of 60 days following the order of this Court issued on 9th April, 2024; that Mary Nthuraku Njeru and Inyasio Mwaniki Ngari the representatives of the Estate of Francis Njeru (deceased) who is the 2nd respondent in the appeal be made parties to the proceedings by way of substitution of the said deceased.

2. In grounds in support of the application and in a supporting affidavit of Naaman Ireri Sigana it is said amongst other things that the appeal came up for hearing on 9th April, 2024 when counsel for the respondents indicated to court that several parties to the appeal had since died; that the court ordered the appellants to file an application to substitute the deceased parties; that the 3rd appellant, a person of advanced age, was unable to get relevant information within 60 days as ordered by the court; that he has since obtained a copy of a Certificate of Confirmation of Grant in relation to the estate of Francis Njeru (the 2nd respondent) issued to Mary Nthuraku Njeru and Inyasio Mwaniki Ngari as personal representatives of the deceased; that the appeal should be revived in the interests of justice. Attached to the application is a Certificate of Confirmation of Grant issued on 8th April, 2023 in respect of the Estate of the 2nd respondent (deceased).I have seen hearing notice dated 7th March, 2025 at 11. 40 a.m. to ekmutuaoffice@gmail.com and dmuyodi@gmail.com where parties were notified of hearing date and were required to file written submissions. I have seen and considered written submissions by the applicants but the respondents did not file submissions.The applicants were ordered to file an application for substitution of the 2nd respondent within 60 days but did not do so.

3. The deponent to the supporting affidavit tells me that he is of advanced age and that his gallant efforts to file the application within the time ordered did not succeed as he did not obtain the relevant information within the time ordered to enable him file the application. He later obtained a copy of the Grant where two individuals were appointed to represent the Estate of the deceased respondent. I think that this is a reasonable explanation and it is fair that I allow the application.I allow the application by reviving the appeal; Mary Nthuraku Njeru and Inyasio Mwaniki Ngari will be the representatives of the Estate of Francis Njeru (deceased). I make no order on costs.

DATED AND DELIVERED AT NYERI THIS 28TH DAY OF MARCH, 2025. S. ole KANTAI...................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR

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