[2010] KEHC 1587 (KLR)
The court held that by operation of Order 23 rule 4, as read with rule 10 of the Civil Procedure Rules, the appeal abated automatically because no application was made to substitute the deceased respondent with his legal representatives within one year of his death. The law on abatement applies equally to appeals as...
Source-derived case information.
- Citation
- [2010] KEHC 1587 (KLR)
- Parties
- Applicant: Cecilia Wachuka Muchuku; Applicant: Kennedy Ivia Wambua; Respondent: Muchuku Gituma; Appellant: Kenya Power & Lighting Company Limited
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 91 of 2005
- Procedural Posture
- Civil Appeal / Ruling on Application to Declare Appeal Abated Due to Death of Respondent and Lack of Substitution
- Outcome
- application allowed; appeal declared abated; no order as to costs
- Judges
- SP Ouko
- Legal Topics
- Abatement of Appeals, Substitution of Parties, Death of Respondent, Revival of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cecilia Wachuka Muchuku
Applicant
Kennedy Ivia Wambua
Applicant
Muchuku Gituma
Respondent
Kenya Power & Lighting Company Limited
Appellant
Procedural Posture
Civil Appeal / Ruling on Application to Declare Appeal Abated Due to Death of Respondent and Lack of Substitution
Legal Issues
- 1 Whether the appeal abated by operation of law due to failure to substitute the deceased respondent within one year of death.
- 2 Whether the applicants are entitled to an order declaring the appeal abated.
- 3 Whether the withdrawal of the decretal sum from the joint account is a matter for the court or police investigation.
Ratio Decidendi
The court held that by operation of Order 23 rule 4, as read with rule 10 of the Civil Procedure Rules, the appeal abated automatically because no application was made to substitute the deceased respondent with his legal representatives within one year of his death. The law on abatement applies equally to appeals as to suits. The only recourse for the applicants would have been to apply for revival of the appeal, which was not done. The issue of the withdrawn decretal sum was not for the court to determine in this application but could be investigated by the police if fraud or forgery was suspected. Accordingly, the application to declare the appeal abated was allowed.
Court Disposition
application allowed; appeal declared abated; no order as to costs
Orders
- The application is allowed.
- The appeal is declared abated.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Civil Appeal 91 of 2005
CECICLIA WACHUKA MUCHUKU &
KENNEDY IVIA WAMBUA...................LEGAL REPRESENTATIVES
OF THE DECEASED
RESPONDENT/APPLICANTS
AND
MUCHUKU GITUMA………..................RESPONDENT/DECEASED
VERSUS
KENYAPOWER & LIGHTING COMPANY…............................................RESPONDENT/APPELANT
RULING
The respondent in this application, the Kenya Power and Lighting Company Limited was aggrieved by an award of the lower court to the plaintiff in NKR.CMCC No.57/2003, Muchuku Gituma, in the sum of Kshs.641,792. 50 and preferred this appeal on
18th May, 2005. However on9th January, 2007the said Muchuku Gituma died.It was not until8th February, 2008, one year and one month later that a grant of representation in respect of his estate was obtained by the applicants in the present application.In the application broughton 21st April, 2008, the applicants want the court to declare that the appeal has abated for the reason that one year after the death of Muchuku Gituma, no application has been made to join the deceased’s legal representative in the appeal in place of the deceased.The respondent filed a replying affidavit but did not attend to canvass it despite service of the hearing notice.In the affidavit it is averred that having deposited the decretal sum in the join names of counsel for the parties ordered by the court as a condition for stay of execution, the court file disappeared.When their efforts to trace the file failed, they filed an application for reconstruction.While that application was pending the instant application was filed.The respondent has also averred that the decretal sum deposited in the joint account has mysteriously been withdrawn without counsel for the respondent’s knowledge.
I have considered the forgoing arguments.By dint of Order 23 rule 4 (erroneously shown in the application as rule 3) where within one year following the death of a defendant, no application is made to join his legal representative in the suit in place of the deceased defendant, the suit “shall” abate as against the deceased defendant.
Order 23 rule 10 aforesaid provides that:
“10. In the application of this Order to appeals, so far as may be, the word “plaintiff” shall be held to include an appellant, the word “defendant” a respondent and the word “suit” an appeal.”
The law on abatement of suits apply also to appeals.The respondent in this appeal having died and one year later there was no application to substitute him in the appeal with his legal representatives, the applicants herein, by operation of the law the appeal abated.The only recourse would have been for the applicants to apply for the revival of the appeal under Order 23 rule 8(2) aforesaid – but can they?
The only thing left in this appeal is the ascertainment of how the decretal sum deposited in the joint names of counsel was withdrawn.That may be suitably dealt with by the police if forgery or fraud is suspected.
Thisapplication is allowed.I make no order as to costs.
Dated, Signed and Delivered at Nakuru this 30th day of July, 2010.
W. OUKO
JUDGE