[1999] KECA 118 (KLR)
The appeal was struck out as incompetent because the appellant, Njuguna Kiumu, had died before the appeal was filed and no legal representative was substituted in accordance with Order 23 rule 3(1) of the Civil Procedure Rules or rule 93 of the Court of Appeal Rules. As a result, there was no proper appellant before...
Source-derived case information.
- Citation
- [1999] KECA 118 (KLR)
- Parties
- Appellant: Njuguna Kiumu; Respondent: Simon P. Gichuru
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 268 of 1997
- Procedural Posture
- Civil Appeal / Order on Competence of Appeal
- Outcome
- appeal struck out as incompetent; proceedings declared a nullity
- Legal Topics
- Death of Party, Substitution of Parties, Incompetent Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Njuguna Kiumu
Appellant
Simon P. Gichuru
Respondent
Procedural Posture
Civil Appeal / Order on Competence of Appeal
Legal Issues
- 1 Whether the appeal is competent where the appellant died before the appeal and no legal representative was substituted.
- 2 Whether proceedings in the superior court were valid when the plaintiff was already deceased at the time of trial.
Ratio Decidendi
The appeal was struck out as incompetent because the appellant, Njuguna Kiumu, had died before the appeal was filed and no legal representative was substituted in accordance with Order 23 rule 3(1) of the Civil Procedure Rules or rule 93 of the Court of Appeal Rules. As a result, there was no proper appellant before the court, and the proceedings in both the superior court and the Court of Appeal were a nullity. The court declared all proceedings, including the judgment of the superior court, void ab initio due to the absence of a living plaintiff at the time of trial.
Court Disposition
appeal struck out as incompetent; proceedings declared a nullity
Orders
- The appeal is struck out with no order as to costs.
- All proceedings before the Judge, including his final decision, are declared a nullity.
Full Case Text
Judgment text and source record
8 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAIROBI (CORAM: GICHERU, KWACH & SHAH, JJ.A.) CIVIL APPEAL NO. 268 OF 1997 BETWEEN
NJUGUNA KIUMU ................................................... APPELLANT AND SIMON P. GICHURU ............................................... RESPONDENT
ORDER OF THE COURTThis appeal is incompetent because the named appellant Njuguna Kiumu died on 25th November, 1987 and no steps were taken under Order 23 rule 3(1) of the Civil Procedure Rules or rule 93 of the Rules of this Court to cause the legal representative of Njuguna Kiumu to be made a party either in the suit in the superior court, or in this appeal. That being the case this appeal is hereby struck out with no order as to costs.
As the appellant was already dead on the date of trial, there was really no plaintiff in the suit. Those proceedings before the Judge including his final decision were a nullity and it is so declared. Made at Nakuru this 24th day of February, 1999.
J. E. GICHERU ............... JUDGE OF APPEAL
R. O. KWACH ............... JUDGE OF APPEAL
A. B. SHAH ............... JUDGE OF APPEAL
I certify that this is a true copy of the original. DEPUTY REGISTRAR