[2009] KEHC 3277 (KLR)
The court held that the application was incompetent because it was filed by an advocate without instructions from the legal representative of the deceased respondent. The court emphasized that an advocate cannot act on behalf of a deceased person unless instructed by the legal representative. Since no legal...
Source-derived case information.
- Citation
- [2009] KEHC 3277 (KLR)
- Parties
- Appellant: Devji Lalji & 4 Others; Respondent: Abdulaziz Juma Omar
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 55 of 1997
- Procedural Posture
- Civil Appeal / Ruling on Application to Declare Appeal Abated Due to Death of Respondent
- Outcome
- application struck out with costs
- Legal Topics
- Abatement of Appeal, Locus Standi, Legal Representative, Death of Party
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Devji Lalji & 4 Others
Appellant
Abdulaziz Juma Omar
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Declare Appeal Abated Due to Death of Respondent
Legal Issues
- 1 Whether the application to declare the appeal abated due to the death of the respondent is competent.
- 2 Whether an advocate can file an application on behalf of a deceased party without instructions from a legal representative.
Ratio Decidendi
The court held that the application was incompetent because it was filed by an advocate without instructions from the legal representative of the deceased respondent. The court emphasized that an advocate cannot act on behalf of a deceased person unless instructed by the legal representative. Since no legal representative had been appointed for the deceased respondent, the application lacked proper authority and was therefore struck out. The court reiterated that there are no shortcuts in such matters and that only a person clothed with the requisite legal authority may seek orders from the court on behalf of a deceased party.
Court Disposition
application struck out with costs
Orders
- The application is struck out with costs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Civil Appeal 55 of 1997
DEVJI LALJI & 4 OTHERS……………………....APPELLANT
VERSUS
ABDULAZIZ JUMA OMAR…………………….RESPONDENT
RULING
This application was lodged by the firm of M/S Kiarie Kariuki & Company advocates purportedly on behalf of Abdulaziz Juma Omar, the respondent. It seeks one prayer, apart from costs, namely that the court be pleased to order that the appeal herein has abated due to the death of the respondent. The application is supported by an affidavit sworn by one Mohamed Kassim Abdulaziz who has deponed that he is the son of the late Abdulaziz Juma Omar, the respondent. Annexed to the application is a death certificate in respect of the respondent.
The application is opposed, on the basis of Grounds of Opposition filed by counsel for the appellant in which it is contended that as the respondent is deceased and no legal representative appointed to administer his estate, the advocate who lodged the application had no locus standi to bring the application.
When the application came up before me for hearing, counsel agreed to file written submissions which were in place by 24th June 2009.
I have considered the application and the submissions of counsel. Having done so, I have come to the conclusion that the application is incompetent having been filed without instructions of the legal representative of the deceased. I would have thought that it is elementary that an advocate can only act with instructions of a living person. Having expressly been informed of the death of the respondent, the advocate should have known that he would only act on instructions of the Legal Representative of the deceased and not those of a busy body. There are no short cuts. If the deponent of the supporting affidavit desires to seek any orders of the court he must clothe himself with the authority to do so.
This application is struck out with costs.
DATED AND DELIVERED AT MOMBASA THIS 28TH DAY OF JULY 2009.
F. AZANGALALA
JUDGE
Read in the presence of:-
Mr. Matheka holding brief for Mwakireti for the Respondent and Mr. Nyaberi holding brief for Kasmani for the Appellant.
F. AZANGALALA
JUDGE
28TH JULY 2009