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Court of AppealDismissedNot stated in the judgment (civil application within an appeal)

Richard v Ng’ang’a & another; Republic & another (Respondent) (Civil Appeal (Application) 242 of 2015) [2023] KECA 109 (KLR)

Court of Appeal of Kenya
3 February 2023
1,494 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Okwengu, Sichale and Mohammed, JJ.A) on a notice of motion dated February 6, 2020 by Ombui Richard seeking to be enjoined in a pending appeal as interested party in his capacity as legal administrator of the estate of Teresa Gesare Kebwaro (deceased), who had been the 3rd respondent until her name was struck out of the appeal on January 20, 2020. The applicant relied on a grant of letters of administration issued on January 23, 2014 and cited Attorney General v Kenya Bureau of Standards & another [2018] eKLR for the proposition that joinder may occur at any stage. The respondents opposed, showing that Teresa died on October 12, 2005, before the High Court proceedings were instituted in November 2006; that despite substituted service and appearances by an advocate on the family's instructions, no steps were taken to join her representatives; and that her name was struck out with the consent of that advocate. The Court, applying Rules 78 and 85 of the Court of Appeal Rules, held the appeal against the deceased was not incompetent, but found the applicant had known of the proceedings yet taken no action, that no rider to the striking-out order permitted re-joining, and that the striking-out order had not been set aside. It agreed the application was an abuse of the court process and dismissed it with costs on February 3, 2023. The decision binds subordinate courts and the High Court on substitution of deceased parties on appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 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. 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

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01

Competence of an appeal instituted against a deceased respondent

Holding

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

Reasoning

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.

p. 3
02

Joinder of the deceased's administrator after the deceased's name was struck out

Holding

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

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
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

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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

p. 3

Costs

The application is dismissed with costs (costs of the application awarded to the 1st and 2nd respondents).

Quotable passages

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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.
p. 3Final orders - dismissal of joinder application
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.
p. 3Rule 85 - appeal against deceased respondent
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.
p. 3Acquiescence / failure to seek joinder

Issues in the judgment

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minor

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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.