[2004] KEHC 2517 (KLR)
The court found that both the appeal and the application to strike it out were incompetent because they involved a deceased party without proper substitution by the estate or legal representative. The application for release of funds to a third party (not the estate) was also improper. Therefore, the application was...
Source-derived case information.
- Citation
- [2004] KEHC 2517 (KLR)
- Parties
- Appellant: Brooke Bond (K) Ltd; Respondent: Mathew Ogweno Owiti
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 538 of 2003
- Procedural Posture
- Civil Appeal / Ruling on Application to Strike Out Appeal and Release Decretal Funds
- Outcome
- application struck out as incompetent
- Legal Topics
- Incompetent Proceedings, Deceased Party, Striking Out Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Brooke Bond (K) Ltd
Appellant
Mathew Ogweno Owiti
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Strike Out Appeal and Release Decretal Funds
Legal Issues
- 1 Whether an application to strike out an appeal can be brought by or against a deceased person.
- 2 Whether funds held in a joint account can be released to a third party rather than the estate of a deceased respondent.
Ratio Decidendi
The court found that both the appeal and the application to strike it out were incompetent because they involved a deceased party without proper substitution by the estate or legal representative. The application for release of funds to a third party (not the estate) was also improper. Therefore, the application was struck out for incompetence, and no orders were made as to costs since the application was undefended.
Court Disposition
application struck out as incompetent
Orders
- The application is struck out as incompetent.
- No order as to costs.
Full Case Text
Judgment text and source record
4 paragraphs
IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL APPEAL NO 538 OF 2003 BROOKE BOND (K) LTD ……………………...………… APPELLANT VERSUS MATHEW OGWENO OWITI ………………...……….. RESPONDENT RULING
In this application, the Respondent seeks to strike out this appeal, and for the funds (decretal amount) presently held in the joint account of the Advocates to be paid to the Respondent on the grounds that the appeal is incompetent as it has been filed against a dead person. In a supporting affidavit sworn by one Imelda Aoko Owiti, it is deponed that the Respondent is deceased, and that the funds should be released to her. If the Respondent is indeed dead, this application should have been brought by his Estate. Just as a suit against a deceased person is incompetent, so is an application by a deceased person to strike out the suit. The funds cannot be released to a third party – only to the Estate of the Deceased.
Accordingly, the application before me is incompetent and is struck out. As the application was not defended, I make no order as to costs. Dated and delivered at Nairobi this 14th day of July, 2004.
ALNASHIR VISRAM JUDGE