[2000] KECA 101 (KLR)
The court held that in the absence of substitution of the legal representatives for the two deceased respondents, it could not proceed to hear the application for extension of time. The applicant, as the interested party, is required to apply for substitution of the deceased respondents with their legal...
Source-derived case information.
- Citation
- [2000] KECA 101 (KLR)
- Parties
- Applicant: Nyakio Company Limited; Respondent: Geoffrey Maranga Kairu; Respondent: John Mwanu Njugi; Respondent: Wangombe Njogu; Respondent: Kamotho Muchemi Kabati; Respondent: Apollo Mbogo Mugambi; Respondent: Martin Muriithi Mutongu; Respondent: Ibangua Investment Company Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 177 of ??
- Procedural Posture
- Civil Application / Application for Extension of Time in Intended Appeal
- Outcome
- Application stood over generally pending substitution of deceased respondents.
- Legal Topics
- Extension of Time, Substitution of Parties, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nyakio Company Limited
Applicant
Geoffrey Maranga Kairu
Respondent
John Mwanu Njugi
Respondent
Wangombe Njogu
Respondent
Kamotho Muchemi Kabati
Respondent
Apollo Mbogo Mugambi
Respondent
Martin Muriithi Mutongu
Respondent
Ibangua Investment Company Limited
Respondent
Procedural Posture
Civil Application / Application for Extension of Time in Intended Appeal
Legal Issues
- 1 Whether the application for extension of time can be heard when two respondents are deceased and no substitution has been made.
- 2 Whether the applicant must first apply for substitution of the deceased respondents with their legal representatives before proceeding with the application.
Ratio Decidendi
The court held that in the absence of substitution of the legal representatives for the two deceased respondents, it could not proceed to hear the application for extension of time. The applicant, as the interested party, is required to apply for substitution of the deceased respondents with their legal representatives before the application can be heard. The hearing of the application is therefore stood over generally pending such substitution. The court also directed that the application for substitution be heard at Nairobi, given the importance of the matter.
Court Disposition
Application stood over generally pending substitution of deceased respondents.
Orders
- The hearing of the application for extension of time is stood over generally pending the filing, hearing, and determination of an application for substitution of the deceased respondents with their legal representatives.
- The application for substitution is to be heard at Nairobi.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT NYERI CORAM: SHAH, J.A. (IN CHAMBERS) CIVIL APPLICATION NO. NAI 177 OF 2000
BETWEEN
NYAKIO COMPANY LIMITED ........................................................... APPLICANT
AND
GEOFFREY MARANGA KAIRU
JOHN MWANU NJUGI
WANGOMBE NJOGU
KAMOTHO MUCHEMI KABATI
APOLLO MBOGO MUGAMBI
MARTIN MURIITHI MUTONGU
IBANGUA INVESTMENT COMPANY LIMITED ............................................... RESPONDENTS
(Application for extension of time in an intended appeal from a ruling of the High Court of Kenya at Nyeri (Osiemo J) dated 27th November, 1996 in H.C.C.C. NO. 279 OF 1996) ********************
R U L I N G
I am told that two of the respondents to this appeal are dead. They are John Mwanu Ngugi and Geoffrey Maranga Kairu, that is, the second and first respondents respectively. I am also told that they "passed away" after the delivery of the ruling which the applicant seeks to appeal against.
The application before me is filed by the applicant, Nyakio Pig Company Limited, a limited liability company. The remaining five respondents are objecting to the application on the ground, inter alia, that as the said two respondents are dead, the intended appeal will not serve any purpose. Rule 83 of the Rules of this Court provides:
"83(1)An appeal shall not be instituted in the name of a person who is dead but may be instituted in the name of his legal representative.
(2)An appeal shall not be incompetent by reason only that the respondent was dead at t he time when it was instituted but the court, shall, on the application of any interested person, cause the legal representative of the deceased to be made a party in place of the deceased."
In the absence of substitution of the legal representative of the two deceased "respondents" , I cannot hear this application. The order that commends itself to me at this stage is that the interested party (in this case the applicant) ought to apply to the Court for such substitution.
Pending the filing, hearing and determination of the application for substitution, the hearing of this application is stood over generally.
As the matter appears to be of some importance I direct that the application for substitution be heard at Nairobi.
Costs so far occasioned are hereby reserved.
Dated and delivered at Nyeri this 25th day of October, 2000.
A. B. SHAH
---------------
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR