Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealStruck OutCivil Appeal No. 268 of 1997· [1999] KECA 118 (KLR)

NJUGUNA KIUMU vs SIMON P. GICHURU [1999] KECA 118 (KLR)

Court of Appeal
24 February 1999
JGJ. E. GicheruRKR. O. KwachASA. B. Shah
196 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~1 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal struck out an appeal because the appellant had died and no one replaced him, voiding the entire case.

What this practically means

#

Executive summary

#
In this brief Court of Appeal order, the court dealt with an appeal in which the named appellant, Njuguna Kiumu, had died on 25th November 1987, before the trial in the superior court. No steps had been taken under Order 23 rule 3(1) of the Civil Procedure Rules, or rule 93 of the Court of Appeal Rules, to cause the deceased's legal representative to be made a party either in the High Court suit or in the appeal. The court held that the appeal was therefore incompetent and struck it out, with no order as to costs. Going further, the court declared that because the appellant was already dead on the date of trial, there was in reality no plaintiff in the suit, and that the proceedings before the High Court judge, including his final decision, were a nullity. The judgment was delivered at Nakuru on 24th February 1999 by a unanimous bench of Gicheru, Kwach and Shah, JJ.A. The decision binds lower courts to the propositions that an appeal in which a deceased party's legal representative has not been substituted is incompetent, and that proceedings conducted in the name of a person who was dead at trial, together with the resulting judgment, are a nullity. No authorities were cited and no separate opinions were written.

Key legal issues

#
01

Competence of an appeal where the appellant died before trial and no substitution of a legal representative occurred

Holding

The appeal was incompetent because the appellant died on 25th November 1987 and no legal representative was made a party in the superior court suit or in the appeal.

Reasoning

Order 23 rule 3(1) of the Civil Procedure Rules and rule 93 of the Court of Appeal Rules require that where a party dies, the legal representative be made a party to the suit or appeal. No such steps were taken. Without a living plaintiff or appellant, there was no competent party before either court, rendering the appeal incompetent and liable to be struck out.

p. 2
02

Effect of the death of the plaintiff on the High Court proceedings and judgment

Holding

The proceedings before the High Court judge, including the final decision, were declared a nullity because there was no plaintiff in the suit, the appellant having died before the date of trial.

Reasoning

A suit cannot be prosecuted by a dead person; a cause of action survives to personal representatives only upon their substitution. Since the appellant was dead at trial and no legal representative had been joined, the trial proceedings lacked a competent plaintiff. The court therefore declared the entire proceedings and the final decision a nullity, in addition to striking out the appeal.

p. 2

Legal principles established

#
  • Where a party to a suit or appeal dies and no legal representative is brought on record under Order 23 rule 3(1) of the Civil Procedure Rules or rule 93 of the Court of Appeal Rules, the appeal is incompetent and must be struck out.
  • Proceedings conducted in the name of a plaintiff who was already dead at the date of trial, including the resulting final decision, are a nullity.

Court orders

#
  1. 1.The appeal is struck out with no order as to costs
  2. 2.It is declared that the proceedings before the Judge, including his final decision, were a nullity
On appeal from
High Court
Jurisdiction invoked
Court of Appeal appellate jurisdiction under the Constitution/Civil Procedure; appeal from the superior court (specific provision not stated in the judgment)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "NJUGUNA KIUMU vs SIMON P. GICHURU [1999] KECA 118 (KLR)", Case Analysis (1999). Civil Appeal No. 268 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1999/118/eng@1999-02-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.