Richard v Ng’ang’a & another; Republic & another (Respondent) (Civil Appeal (Application) 242 of 2015) [2023] KECA 109 (KLR)
The bottom line
#Kenya's Court of Appeal refused to let an administrator join an appeal years after the deceased's name was struck out with consent, calling it an abuse of process.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Ombui Richard, an administrator of the estate of Teresa Gesare Kebwaro (deceased), should be enjoined in the appeal as an interested party in place of the deceased respondent
- 2.Whether the application to be joined, made years after the deceased's name was struck out of the appeal, is competent or an abuse of the court process
Key legal issues
#Competence of an appeal instituted against a deceased respondent
An appeal is not incompetent merely because the respondent was dead when it was instituted; the remedy is substitution of the legal representative upon application
Rule 85 of the Court of Appeal Rules provides that an appeal shall not be instituted in the name of a dead person but may be instituted by the legal representative, and that an appeal is not incompetent merely because the respondent was dead when instituted; the court may on application cause the legal representative to be made a party in place of the deceased. The Court found the appeal against the deceased was therefore competent.
Joinder of the deceased's administrator after the deceased's name was struck out
The application to join the administrator was an abuse of process because the family knew of the proceedings, took no action, and consented to the striking out; and the alleged rider to the striking-out order did not exist
The applicant, appointed administrator on January 23, 2014, never sought to be joined in the High Court or in this Court. Instead an advocate appearing for the family consented to Teresa's name being struck out on January 20, 2020. The applicant did not explain the change of position nor seek to set aside that order, and the Court found on the record there was no rider permitting the legal representative to apply to be enjoined. The application was accordingly an abuse of process.
Legal principles established
#- An appeal against a deceased respondent is not incompetent; the Court may, on the application of any interested person, cause the deceased's legal representative to be made a party in place of the deceased - but a legal representative who knew of the proceedings and took no steps, and whose deceased's name was lawfully struck out with consent, cannot later be joined
Court orders
#- 1.The applicant's notice of motion dated February 6, 2020 seeking to be enjoined in the appeal as interested party is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Not stated (judgment delivered March 27, 2014)
- Jurisdiction invoked
- Inherent/appellate jurisdiction of the Court of Appeal read with Rule 85 of the Court of Appeal Rules, 2010
Relief refused
#Enjoinment of Ombui Richard in the appeal as legal administrator/interested party of the estate of Teresa Gesare Kebwaro (deceased)
The applicant and the family knew of the High Court suit but took no steps to be joined; Teresa's name was struck out of the appeal with the consent of an advocate appearing for her family; no rider existed on the striking-out order and the order was never set aside; the application is an abuse of process
Costs
The application is dismissed with costs (costs of the application awarded to the 1st and 2nd respondents).
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 agree with the appellants/respondents that the application is an abuse of the court process. It is accordingly dismissed with costs.
an appeal shall not be incompetent by reason only that the respondent was dead at the 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.
It is evident that the applicant and the family of Teresa were aware of the High Court suit but took no action to be enjoined in the suit.
Issues in the judgment
#The judgment does not state the appeal number, neutral citation, or the nature of the suit in the High Court beyond that it arose from a judicial review application; the coram names are given with initials only for two judges
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Richard v Ng’ang’a & another; Republic & another (Respondent) (Civil Appeal (Application) 242 of 2015) [2023] KECA 109 (KLR)", Case Analysis (2023). Not stated in the judgment (civil application within an appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/109/eng@2023-02-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.