Joseph Wanyama Muchoe (Appealing for and on behalf of the members of) Yuya Farmers Co-operatve Society Ltd v Mercia Muliro (Sued as the personal representative of Masinde Muliro [2019] KECA 931 (KLR)
The bottom line
#The Court of Appeal confirmed that a dead person's appeal cannot be revived by a stranger — only the deceased's legal representative can apply.
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 Court has jurisdiction under Rule 99(3) to revive an appeal that has abated where the applicant is not the legal representative of the deceased party
- 2.Whether the administrator of the estate of the deceased respondent (Mercia Muliro) automatically acquires capacity to administer the estate of Masinde Muliro, in whose capacity she was sued
- 3.Whether Mukasa Mwambu Muliro should be substituted for the deceased respondent and the abated appeal revived
Key legal issues
#Jurisdiction to revive an abated appeal under Rule 99(3)
Revival is available only where the applicant is the legal representative of the deceased party and provides a satisfactory explanation for the failure to continue the appeal; the applicant here was neither
Rule 99(2) had declared the appeal abated because the deceased respondent died in September 2015 and no substitution was made within one year. Rule 99(3) empowers revival only on an application by the person claiming to be the legal representative of the deceased party who was prevented by sufficient cause from continuing the appeal. The applicant was the original appellant seeking to substitute a third party, not a legal representative of the deceased respondent, so the jurisdictional preconditions were not met.
Capacity of the administrator of a deceased personal representative's estate to administer the underlying estate
The grant to Mercia Muliro over Masinde Muliro's estate became inoperative on her death; her own administrator cannot administer Masinde Muliro's estate
Mercia Muliro was sued not personally but as personal representative of Masinde Muliro's estate. Her appointment was a fiduciary duty that could not be delegated. On her death, her grant became inoperative, paving the way for a substitute legal representative to be appointed by the court. Mukasa Mwambu Muliro's grant over Mercia Muliro's estate confers authority only over that estate and does not permit him to administer Masinde Muliro's estate, particularly as he was not a beneficiary and his assertion to the contrary was uncontroverted.
Legal principles established
#- The Court's power to revive an abated appeal under Rule 99(3) is confined to applications by the legal representative of the deceased party who gives a satisfactory explanation for the failure to continue the appeal
- The appointment of a personal representative is a fiduciary duty that cannot be delegated, and the administrator of a deceased personal representative's estate does not automatically step into that deceased's shoes to administer the underlying estate
- An abated suit or appeal ceases to exist in the eye of the law
Court orders
#- 1.The application for substitution of Mukasa Mwambu Muliro in place of the deceased respondent is dismissed
- 2.Costs of the application awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Court of Appeal (prior order in the same court)
- Civil Appeal No. 17 of 2015
- Jurisdiction invoked
- Rules 42 and 99(3) of the Court of Appeal Rules, 2010
Relief refused
#Substitution of Mukasa Mwambu Muliro in place of Mercia Muliro (deceased) and revival of the abated appeal
The applicant is not a legal representative of the deceased party, and the proposed substitute's grant over Mercia Muliro's estate gives him no authority over the estate of Masinde Muliro; the application is misconceived
Costs
Application dismissed with costs to the respondent
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.
It is clear from Rule 99(3), that the Court has jurisdiction to revive an appeal that has abated only in situations where, first, the person making the application is the legal representative of the deceased party to an appeal, and secondly, the legal representative has a satisfactory explanation for failing to continue with the appeal.
Her appointment as personal representative of the estate of Masinde Muliro (deceased), is a fiduciary duty that cannot be delegated. Upon the death of Mercia Muliro, the grant given to her in respect of the estate of Masinde Muliro became inoperative
In the circumstances, we find that this application is misconceived. It is accordingly dismissed with costs.
Issues in the judgment
#The applicant's name appears as 'Joseph Wanyama Muchoe' in the title and 'Joseph Muchoe Wanyama' in the body of the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Wanyama Muchoe (Appealing for and on behalf of the members of) Yuya Farmers Co-operatve Society Ltd v Mercia Muliro (Sued as the personal representative of Masinde Muliro [2019] KECA 931 (KLR)", Case Analysis (2019). Civil Application No. 65 of 2018 (UR 41 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/931/eng@2019-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.