Njenga & another v Kinyara & 2 others (Civil Appeal (Application) 30 of 2005) [2018] KECA 72 (KLR)
The bottom line
#Kenya's Court of Appeal revived a lapsed appeal, ruling courts must consider fairness objectives before refusing to revive appeals against deceased parties.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the full Court should interfere with the exercise of discretion by the single judge in dismissing the application for revival of the abated appeal
- 2.Whether under Rule 99(3) of the Court of Appeal Rules only a legal representative, as opposed to any interested person, may apply for revival of an abated appeal
- 3.Whether the overriding objectives under Sections 3A and 3B of the Appellate Jurisdiction Act could have enabled the court to revive the abated appeal notwithstanding Rule 99(3)
- 4.Whether the delay in seeking revival/substitution was inordinate and whether it was satisfactorily explained
- 5.Whether a fresh application introducing new matters may be filed on a reference from a single judge under Rule 55
Key legal issues
#Interference with discretionary decision of a single judge on reference
The full Court set aside the single judge's ruling because she failed to consider the overriding objectives under Sections 3A and 3B of the Appellate Jurisdiction Act, a relevant factor, and would have reached a different conclusion had she done so.
The Court applied the established test in Hezekiah Michoki v Ombongi that interference is warranted where the judge ignored relevant factors or misapplied principles. Sections 3A and 3B require the Court to pursue just, expeditious, proportionate and affordable resolution of appeals. Since the single judge's ruling did not reveal any consideration of those overriding objectives, her discretion was improperly exercised and the Court was entitled to interfere and substitute its own order.
Locus standi to revive an abated appeal under Rule 99(3)
Rule 99(3) confines the right to apply for revival of an abated appeal to the legal representative of the deceased party, unlike Rule 99(1) and Rule 51(4) which extend substitution and revival rights to any interested person; the Court doubted the rationality of the distinction and urged the Rules Committee to rationalize the provisions.
The Court traced the history of the rules: under the repealed 1972 Rules no revival of abated appeals was possible, and the 2010 amendment introduced Rule 99(3) to cure the injustice noted in Vyatu and Pauline Wambui Ngari. The Court found no rational basis for allowing any interested person to seek substitution within 12 months but limiting revival after abatement to the legal representative, and suggested the Rules Committee revisit the provisions.
Whether the delay in applying for revival was inordinate
The delay of approximately one year and seven months was not inordinate because both counsel only became aware of the death of the 1st respondent in May and June 2011, after the appeal had already abated.
The 1st respondent died on 21st March 2010, but correspondence exhibited showed the appellants' advocates first learned of the death on 30th May 2011 and the 1st respondent's advocates on 2nd June 2011, by which time the 12-month abatement period had lapsed. The delay was thus explained and excusable, and the applicant's advanced age of 86 years reinforced the justice of revival by analogy with Gachihi Wang'ombe.
Procedure on a reference from a single judge
A reference under Rule 55 must be made informally at the time of the decision or by writing to the Registrar within seven days, and no additional evidence may be adduced on the hearing of the reference; filing a fresh application introducing new matters is impermissible.
The Court accepted counsel Amuga's submission that under Rule 55(2) no additional evidence shall be adduced at the hearing of an application previously decided by a single judge. It deprecated the practice of filing fresh applications on references, while still disposing of the reference on the materials that were before the single judge.
Legal principles established
#- A full Court on a reference may only interfere with a single judge's exercise of discretion where the judge took into account irrelevant factors, failed to take into account relevant factors, failed to apply correct principles, or the decision is plainly wrong.
- The overriding objectives under Sections 3A and 3B of the Appellate Jurisdiction Act confer latitude on the Court in the exercise of discretion and must be considered when dealing with applications such as revival of an abated appeal; failure to consider them is a ground for interference.
- On a reference from a decision of a single judge under Rule 55, an applicant may not file a fresh application introducing additional evidence or matters not canvassed before the single judge; that practice is deprecated.
Court orders
#- 1.Setting aside the ruling of the single judge delivered on 24th February 2012
- 2.Allowing prayer 1 of the applicants' application dated 11th August 2011, reviving the appeal as against the 1st respondent
- 3.Ordering that Margaret Wanjiru Wainaina and Eunice Wangari Mwangi, the personal representatives of the deceased, be made parties to the appeal in place of the 1st respondent deceased
- 4.Directing the appellants to file and serve an amended record of appeal reflecting the substituted parties within 14 days, after which the appeal shall be fixed for hearing on a priority basis
- 5.Ordering that the costs of the reference shall be costs in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal of Kenya (single judge, W. Karanja, JA)
- Application dated 11th October 2011
- Jurisdiction invoked
- Reference to the full bench from a decision of a single judge under Rule 55(2) of the Court of Appeal Rules
Relief refused
#Substitution of John Wainaina Wanjiru as party in place of the deceased 1st respondent
He is not the legal representative of the deceased; the single judge was correct to decline that prayer. Substitution was instead ordered of the personal representatives named in the probate grant.
Costs
The costs of the reference shall be costs in the appeal.
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.
We substitute therefor an order allowing prayer 1 of the applicants' application dated 11th August 2011 with the result that the appeal is hereby revived.
Consequently, we order that the said Margaret Wanjiru Wainaina and Eunice Wangari Mwangi, the personal representatives of the deceased Margaret Wanjiru Kinyara, deceased, be made parties to this appeal in the place of the 1st respondent deceased.
The costs of the reference shall be costs in the appeal.
it has to be shown by the applicant that the single Judge took into account some irrelevant factor or factors or failed to take into account a relevant factor or factors; that the Judge failed to apply correct principles to the issue at hand, or that, taking into account all the circumstances of the case, his decision was plainly wrong.
It is not apparent from the ruling under reference that the learned single Judge did consider the import Sections 3A and 3B of the Act when exercising her discretion.
an applicant on a reference from a decision of a single judge to the Court should not file a fresh application introducing additional evidence and the practice to do so is to be deprecated.
Issues in the judgment
#The motion seeking revival and substitution is described inconsistently in the judgment as 'dated 11th October 2011' in the introduction but as 'the motion dated 11th August 2011' elsewhere, and the filing date is given as 14th October 2011.
The deceased 1st respondent's son is referred to as 'John Wainaina Wanjiru' in the application, although in the background the deceased's nephew (son of Lucy Wanjiku Njenga) is named 'John Wainaina Njenga', creating potential confusion between the two names.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njenga & another v Kinyara & 2 others (Civil Appeal (Application) 30 of 2005) [2018] KECA 72 (KLR)", Case Analysis (2018). Reference from the ruling of W. Karanja, JA dated 24th February 2012 in Civil Application (motion dated 11th October 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/72/eng@2018-11-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.