IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: NYARANGI, PLATT and GACHUHI JJA)
CIVIL APPEAL NO. 3 OF 1987
JOASH OCHIENG OUGO and ANOTHER ..............................APPELLANTS
VERSUS
VIRGINIA EDITH WAMBUI OTIENO ..............................RESPONDENTS
(Appeal from the High Court at Nairobi, Shields J)
JUDGMENT
This is an appeal from an order which Shields J made upon the dismissal of the appellants’ application by chamber summons under order 39 rule 1 and 4 of the Civil Procedure Rules (the rules). It is an interlocutory appeal and so an appeal of an issue which is not determinable of the dispute. The appeal and this judgment are necessary if the suit pending in the High Court has to be decided on merits. The applications to the High Court which are the subject-matter of this appeal were made within the pending suit.
The facts of the case can be stated in stark simplicity. The late S M Otieno, a prominent practitioner at the criminal bar in the country, died at Nairobi Hospital, in Nairobi on o…