[2010] KECA 28 (KLR)
The court found that William Shivachi Miheso had provided sufficient evidence that he is the administrator of the estate of Elizabeth Amaiza (deceased), and that 'Sabeti Amaiza' and 'Elizabeth Amaiza' refer to the same person. The application for substitution was filed within the 12-month limitation period...
Source-derived case information.
- Citation
- [2010] KECA 28 (KLR)
- Parties
- Respondent: Elizabeth Amaiza; Appellant: Jackson Sabatia Natse; Respondent: The Attorney General; Respondent: The Principal Magistrate’s Kapsabet; Respondent: Kapsabet Land Disputes Tribunal; Applicant: William Shivachi Miheso
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 316 of 2006
- Procedural Posture
- Civil Appeal / Application for Substitution of Deceased Party
- Outcome
- Application allowed. William Shivachi Miheso substituted as party in place of Elizabeth Amaiza (deceased). Costs in the appeal.
- Legal Topics
- Substitution of Parties, Appeal Procedure, Death of Party
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elizabeth Amaiza
Respondent
Jackson Sabatia Natse
Appellant
The Attorney General
Respondent
The Principal Magistrate’s Kapsabet
Respondent
Kapsabet Land Disputes Tribunal
Respondent
William Shivachi Miheso
Applicant
Procedural Posture
Civil Appeal / Application for Substitution of Deceased Party
Legal Issues
- 1 Whether William Shivachi Miheso, as administrator of the estate of Elizabeth Amaiza (deceased), should be substituted as a party to the appeal in place of the deceased.
- 2 Whether the application for substitution was filed within the limitation period stipulated by the Court of Appeal Rules.
Ratio Decidendi
The court found that William Shivachi Miheso had provided sufficient evidence that he is the administrator of the estate of Elizabeth Amaiza (deceased), and that 'Sabeti Amaiza' and 'Elizabeth Amaiza' refer to the same person. The application for substitution was filed within the 12-month limitation period stipulated by Rule 96(2) of the Court of Appeal Rules. As the application was not opposed by any of the respondents, and all procedural requirements were satisfied, the court allowed the application for substitution with costs in the appeal.
Court Disposition
Application allowed. William Shivachi Miheso substituted as party in place of Elizabeth Amaiza (deceased). Costs in the appeal.
Orders
- William Shivachi Miheso, administrator of the estate of Elizabeth Amaiza (deceased), is made a party to the appeal in place of the deceased.
- Costs of the application to be in the appeal.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT KISUMU
(CORAM: GITHINJI, J.A. (IN CHAMBERS)
CIVIL APPEAL (APPLICATION) NO. 316 OF 2006
BETWEEN
ELIZABETH AMAIZA ........................................ APPLICANT/1ST RESPONDENT
AND
JACKSON SABATIA NATSE ........................... 1ST RESPONDENT/ APPELLANT
THE ATTORNEY GENERAL ...................................................... 2ND RESPONDENT
THE PRINCIPAL MAGISTRATE’S KAPSABET ...................... 3RD RESPONDENT
KAPSABETLANDDISPUTES TRIBUNAL .............................. 4TH RESPONDENT
(Application for Mr William Shivachi Miheso the Administrator of the Estate of the applicant to be made a party to the appeal in place of the first respondent Elizabeth Amaiza (deceased) in an appeal from the ruling and or order of the High Court of Kenya at Kakamega (Kariuki, J.) dated 5th day of November, 2004
in
H.C.MISC.C.APP.NO.108 OF 2002)
***************
RULING
This is an application under Rule 96 of the Court of Appeal Rules for an order that William Shivachi Miheso the administrator of the estate of Elizabeth Amaiza(deceased), the 1st respondent in Civil Appeal No.316 of 2006 be made a party in the appeal in place of the deceased.
Although all the respondents were served with the application and hearing notice, none neither filed a replying affidavit nor attended the hearing of the application.
A copy of a certificate of death annexed to the supporting affidavit of the applicant William Shivachi Miheso verifies that “Sabeti Amaiza” died on7th October, 1979. Further a grant of letters of administration to the estate of the deceased was granted to the applicant on 19th March, 2010. The applicant deposes in paragraph 4 of the supporting affidavit to the effect that “Sabeti Amaiza” and “Elizabeth Amaiza” refer to one and the same person. The present application was filed on 9th April 2010, within the 12 months limitation period stipulated in Rule 96(2) of the Court of Appeal Rules.
In the circumstances I am satisfied that the application, which is not in any case opposed, is competent and I allow it with costs in the appeal.
Orders accordingly.
Dated and delivered at Kisumu this 2nd day of December, 2010.
E.M. GITHINJI
..................................
JUDGE OF APPEAL
I certify that this is atrue copy of the original.
DEPUTY REGISTRR