PAULINE WAMBUI NGARI v JOHN KAIRU & another [2009] KECA 420 (KLR)
The bottom line
#An appeal in Kenya's Court of Appeal dies permanently if no one applies to substitute a deceased party within twelve months of their death.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Order XXIII of the Civil Procedure Rules applies to proceedings in the Court of Appeal
- 2.Whether a single Judge has discretion to revive an appeal that has abated and substitute the applicant as legal representative of the deceased appellant
- 3.Whether the time limit in Rule 96(2) of the Court of Appeal Rules can be extended so as to revive an abated appeal
Key legal issues
#Applicability of Order XXIII Civil Procedure Rules to the Court of Appeal
Order XXIII does not apply; the application must be considered solely under Rule 96(1) and (2) of the Court of Appeal Rules
The applicant invoked both Order XXIII Rule 4, 5 and 12 of the Civil Procedure Rules and Rule 96(1) and (2) of the Court of Appeal Rules. The court held the Civil Procedure Rules govern proceedings in the High Court and subordinate courts, not appeals in the Court of Appeal, whose procedure is governed exclusively by the Court of Appeal Rules. Accordingly only Rule 96 could avail the applicant.
Whether an abated appeal may be revived or time for substitution extended under Rule 4
No; once an appeal abates under Rule 96(2) there is no time limit capable of extension and no provision for revival
Relying on the full Court decision in Samuel Nyoike Nduati vs. Republic & Milka Wangui Ng'ang'a, the court held that Rule 4 empowers extension only of time limited by the rules or by a court decision; once abatement has occurred, no period is set within which revival may occur, so there is nothing to extend. Githinji JA's interpretation in Vyatu Limited was endorsed; Bosire JA's contrary view was not approved.
Whether the facts satisfied Rule 96(1) and (2)
The appeal had abated because no substitution application was made within twelve months of death
The deceased died on 26th November 2007. Under Rule 96(1) an appeal does not abate on death, but Rule 96(2) provides that if no application is made within twelve months the appeal abates. No interested person applied by 25th November 2008, so the appeal abated on that date, and the present application was made some one and a half years later.
Legal principles established
#- Order XXIII of the Civil Procedure Rules governing revival of abated suits has no application to appeals in the Court of Appeal
- An appeal abates if no application for substitution of a deceased party's legal representative is made within twelve months of death, and once abated it cannot be revived under the Court of Appeal Rules
Court orders
#- 1.Dismissal of the motion dated 20th March 2009 seeking revival of the suit and substitution of the applicant
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- null
- null
- Jurisdiction invoked
- Rule 96(1) and (2) of the Court of Appeal Rules (single Judge jurisdiction on application to substitute and revive abated appeal)
Relief refused
#Revival of the suit/appeal
The appeal abated on 25th November 2008, twelve months after the deceased's death, and the rules contain no provision for revival of an abated appeal
Substitution of Margaret Wanjiru as legal representative of the deceased appellant
It was dependent on revival of the abated appeal and Order XXIII of the Civil Procedure Rules has no application in the Court of Appeal
Costs
I make no order as to costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I have no hesitation in declaring that Order XXIII of the Civil Procedure Rules has no application in the Court of Appeal.
(2) If no application is made under sub rule (1) within twelve months from the date of death of the appellant or the respondent, the appeal shall abate.
Until the rules are amended, the only order I can issue, and which I do, is to dismiss the motion dated 20th March, 2009.
In all the circumstances, I make no order as to costs.
Issues in the judgment
#Internal inconsistency in the date of the deceased's death: the judgment opens by stating the deceased died on 26th November 2007 but later states the appellant died on 20th November 2007
The judgment uses 'I' throughout, indicating a decision by a single Judge, but the coram is stated only as 'P.N. WAKI, JUDGE OF APPEAL' without indicating whether he sat as a single Judge under Rule 96 jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "PAULINE WAMBUI NGARI v JOHN KAIRU & another [2009] KECA 420 (KLR)", Case Analysis (2009). Court of Appeal Application dated 20th March 2009 (main appeal number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/420/eng@2009-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.