In re Estate of the Late Daniel Toroitich Arap Moi (Deceased) [2022] KECA 1158 (KLR)

In re Estate of the Late Daniel Toroitich Arap Moi (Deceased) (Civil Appeal (Application) 38 of 2016) [2022] KECA 1158 (KLR) (18 October 2022) (Ruling)

Neutral citation: [2022] KECA 1158 (KLR)

Republic of Kenya

In the Court of Appeal at Nyeri

Civil Appeal (Application) 38 of 2016

LK Kimaru, JA

October 18, 2022

IN THE MATTER OF THE ESTATE OF THE LATE DANIEL TOROITICH ARAP MOI (DECEASED)

Between

Zehrabanu (Zainabu) Janmohamed (Senior Counsel)

Applicant

and

Joseph Lekamario & others

Respondent

(A notice of Motion under Article 159 (d) of the Constitution of Kenya, 2010, Section 3A and 3B of the Appellate jurisdiction Act, Rules 51 (4), 99 (3) of the Court of Appeal Rules, 2010)

Ruling

1. There is a pending appeal between Joseph Lekamario & Others vs African Wildlife Foundation & 2 Others (i.e. Civil Appeal No. 38 of 2016)

2. The appeal was scheduled to be heard on 16th June, 2020. However, on that day, the Court was informed that the 2nd Respondent Daniel Toroitich Arap Moi had died and therefore the appeal could not proceed without the 2nd Respondent being substituted. In its ruling of even date, the Court allowed the application for adjournment. At the material part of the ruling, the Court had this to say:‘We need to give the 2nd Respondent’s family time to file the application for substitution to enable them proceed with the appeal. We think the application for adjournment is not unreasonable. We allow it and adjourn the matter to another date to be communicated by the Registrar. We also urge counsel for the 2nd respondent to pursue the issue of substitution with dispatch to enable us proceed with the appeal without too much delay in view of the presentations by Mr. Ochiel”.

3. Pursuant to these directions issued by the Court, the 2nd Respondent’s advocate did file an application dated 4th February, 2021 pursuant to the then Rule 99 (3) (now Rule 102 (3) of the Court of Appeal Rules 2022 seeking to have the 2nd Respondent, Daniel Toroitich Arap Moi substituted by his legal representative Zehrabanu Janmohamed S.C. In the affidavit in support of the application, a grant of probate with written will issued in Nairobi High Court Succession Cause No. 405 of 2020 dated 9th October, 2020 is annexed.

4. The application is not opposed. Indeed a consent was filed by the advocates of the parties to this appeal on 21st July, 2021 and filed before this Court on 17th August, 2021.

5. In the circumstances therefore, this Court allows the application for substitution in the following terms:i.Zehrabanu Janmohamed S.C. is hereby allowed to substitute Daniel Toroitich Arap Moi (deceased) as the 2nd Respondent in this appeal.ii.There shall be no orders as to costs.

DATED AT NYERI THIS 18TH DAY OF OCTOBER, 2022. L. KIMARU.............................JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR