[2008] KECA 177 (KLR)
The Court held that since the appeal had abated by operation of Rule 96(2) of the Court of Appeal Rules and no application for substitution was made within the prescribed twelve months from the date of the appellant's death, the appeal could not be revived. The Rules do not provide for revival of an abated appeal,...
Source-derived case information.
- Citation
- [2008] KECA 177 (KLR)
- Parties
- Applicant: Purbhai Gopal Ramji Patel; Appellant: Gopal Ramji Ladha Patel; Respondent: City Finance Bank Limited
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 156 of 2003
- Procedural Posture
- Civil Appeal / Application for Extension of Time and Substitution After Abatement of Appeal
- Outcome
- application dismissed
- Judges
- PK Tunoi
- Legal Topics
- Abatement of Appeal, Extension of Time, Substitution of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Purbhai Gopal Ramji Patel
Applicant
Gopal Ramji Ladha Patel
Appellant
City Finance Bank Limited
Respondent
Procedural Posture
Civil Appeal / Application for Extension of Time and Substitution After Abatement of Appeal
Legal Issues
- 1 Whether the Court can enlarge time to allow substitution of a deceased appellant after the appeal has abated.
- 2 Whether there is provision under the Court of Appeal Rules for revival of an abated appeal.
- 3 Whether the applicant's explanation for delay due to counsel's negligence is sufficient to warrant the orders sought.
Ratio Decidendi
The Court held that since the appeal had abated by operation of Rule 96(2) of the Court of Appeal Rules and no application for substitution was made within the prescribed twelve months from the date of the appellant's death, the appeal could not be revived. The Rules do not provide for revival of an abated appeal, and therefore, even if time for substitution were extended, it would not resurrect the appeal. The applicant's explanation for delay, being based on counsel's negligence, could not override the clear procedural bar. Consequently, the application for enlargement of time and substitution was dismissed as futile.
Court Disposition
application dismissed
Orders
- The application for enlargement of time and substitution is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
29 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
CIVIL APPEAL (APPLI.) NO. 156 OF 2003
GOPAL RAMJI LADHA PATEL ……..…………….…….. APPELLANT
AND
CITY FINANCE BANK LIMITED …….........………...…. RESPONDENT
(Appeal from the judgment and decree of the High Court of Kenya at Nairobi (Lady Justice Gacheche) dated 20th January, 2003
in
H.C.C.C. NO. 807 OF 1999)
*******************
R U L I N G
By this application expressed to be brought under Rule 4 of the Court’s Rules, the applicant, Purbhai Gopal Ramji Patel seeks two orders:
“1. That this Honourable Court be pleased to enlarge time upon which to file the application for substitution out of time.
2. That the applicant herein Purbai Gopal Ramji Patel do substitute the appellant herein Gopal Ramji Ladha Patel (deceased).
The respondent though duly served with the hearing notice through its counsel, was not represented before me when the application was called to hearing and hence I heard the applicant’s counsel only.
The applicant is the widow of Gopal Ramji Ladha Patel, the deceased who died on 23rd March, 2004. However, before his demise the deceased, had lodged Civil Appeal No. 156 of 2003 at Nairobi. This, he had done on 7th July, 2003.
It is indisputable that the appeal was not prosecuted before the deceased passed on and neither did any interested party nor his estate cause his legal representative to be made a party in his place. It must follow, therefore, that by dint of Rule 96 (2) of the Court’s Rules the appeal had abated by 23rd March, 2005 since no application was made to substitute him within twelve months from the date of his death.
The applicant explains the omission to cause the deceased’s substitution as due to lapses or lack of diligence on its previous counsel.
It is worthy of note that this application was filed on 28th February, 2008, about four year shy of one month after the death of the deceased and I am informed from the bar that the appeal is scheduled to be heard on 16th July, 2008.
The appeal having abated way back in 2005, there is no way that it can be revived under the Rules of the Court. It remains as dead as a dodo. This being the position, this application amounts to an exercise in futility since even if time to apply for substitution of a party was extended, that by itself would not revive the abated appeal. See Vyatu Limited & Another vs. Public Trustee Nyanza Province [2003] KLR 688 and Samwel Nyoike Nduati vs. Republic, Civil Application No. Nai. 292 of 2003 (unreported).
In the circumstances, since there is no provision for revival of an abated appeal, this application is rejected as it cannot succeed and must; accordingly fail.
Regrettable as it may be, since the applicant may suffer injustice through counsel’s negligence, there is no way I can ameliorate the hard situation she finds herself in.
This application is hereby dismissed but with no order as to costs.
Dated and delivered at Nairobi this 11th day of July, 2008.
P. K. TUNOI
……………………………
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR.