[2006] KECA 322 (KLR)
The Court held that since the appellant had died and no application for substitution had been made under rule 96 of the Court of Appeal Rules, the appeal and the motion seeking to strike out the appeal must abate. The existence of a cross-appeal did not alter this outcome, and it too was ordered to abate. The Court...
Source-derived case information.
- Citation
- [2006] KECA 322 (KLR)
- Parties
- Appellant: David Tom Maari alias Tom David Maari t/a Maari and Company Advocates; Respondent: Njuguna Muthui; Respondent: The Standard Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 189 of 2003
- Procedural Posture
- Civil Appeal / Order on Abatement Due to Appellant's Death and Lack of Substitution
- Outcome
- Appeal, motion, and cross-appeal abated due to death of appellant and lack of substitution.
- Judges
- AM Githinji
- Legal Topics
- Abatement of Appeal, Substitution of Parties, Appellate Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Tom Maari alias Tom David Maari t/a Maari and Company Advocates
Appellant
Njuguna Muthui
Respondent
The Standard Limited
Respondent
Procedural Posture
Civil Appeal / Order on Abatement Due to Appellant's Death and Lack of Substitution
Legal Issues
- 1 Whether the appeal and related motions should abate following the death of the appellant and absence of an application for substitution.
- 2 Whether the cross-appeal should also abate in the circumstances.
Ratio Decidendi
The Court held that since the appellant had died and no application for substitution had been made under rule 96 of the Court of Appeal Rules, the appeal and the motion seeking to strike out the appeal must abate. The existence of a cross-appeal did not alter this outcome, and it too was ordered to abate. The Court exercised its discretion under rule 96(2) and made no order as to costs.
Court Disposition
Appeal, motion, and cross-appeal abated due to death of appellant and lack of substitution.
Orders
- The appeal abates.
- The motion seeking to strike out the appeal abates.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA PEAL AT NAKURU
Civil Appeal (Appli) 189 of 2003
BETWEEN
DAVID TOM MAARI alias TOM DAVID MAARI t/a
MAARI AND COMPANY ADVOCAATES…….………………...…… APPELLANT
AND
NJUGUNA MUTHUI
THE STANDARD LIMITED ………………………………………..RESPONDENTS
(An appeal from the judgment and decree of the High Court ofKenyaat Nakuru (Lady
Justice Jessie Lessit) dated 10th June, 2003inNAKURUH.C.C.C. NO. 242 OF 2002)
***************
ORDER OF THE COURT
We are now informed by Mr. Konosi the learned counsel for the appellant that his client passed away sometime in the year 2004 and that no application for substitution was made under rule 96 of this Court’s Rules.
In view of what Mr. Konosi has stated the appeal and the motion which sought the striking out of the said appeal must abate. As there was also a cross-appeal it follows that the same also abates.
We do this pursuant to rule 96(2) of the Rules. We make no orders as to costs.
Made at Nakuru this 2nd day of March, 2006.
R.S.C. OMOLO
……………………..
JUDGE OF APPEAL
E. O. O’KUBASU
………………………
JUDGE OF APPEAL
E. M. GITHINJI
………………………..
JUDGE OF APPEAL
I certify that it is a true
copy of the original.
DEPUTY REGISTRAR