[2004] KECA 62 (KLR)
The Court held that the appeal was incompetent because it was instituted in the name of Joe Louis Martin, who was already deceased at the time of filing. Rule 83(1) of the Court of Appeal Rules expressly prohibits the institution of an appeal in the name of a deceased person, requiring instead that such proceedings...
Source-derived case information.
- Citation
- [2004] KECA 62 (KLR)
- Parties
- Appellant: Joe Louis Martin; Respondent: Shyam Singh Bansal Ram
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 135 of 2000
- Procedural Posture
- Civil Appeal / Appeal Struck Out Preliminary Objection
- Outcome
- appeal_struck_out
- Legal Topics
- Appeal Incompetence, Party Deceased, Legal Representative Requirement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joe Louis Martin
Appellant
Shyam Singh Bansal Ram
Respondent
Procedural Posture
Civil Appeal / Appeal Struck Out Preliminary Objection
Legal Issues
- 1 Whether an appeal can be instituted in the name of a deceased person.
- 2 Whether the appeal is competent in the absence of a legal representative for the deceased appellant.
Ratio Decidendi
The Court held that the appeal was incompetent because it was instituted in the name of Joe Louis Martin, who was already deceased at the time of filing. Rule 83(1) of the Court of Appeal Rules expressly prohibits the institution of an appeal in the name of a deceased person, requiring instead that such proceedings be brought by a legal representative. Both parties' counsel conceded this procedural defect. Consequently, the Court struck out the appeal as a nullity and awarded costs to the respondent.
Court Disposition
appeal_struck_out
Orders
- The appeal is struck out as incompetent.
- The respondent shall have the costs of the appeal.
Full Case Text
Judgment text and source record
7 paragraphs
IN THE COURT OF APPEAL AT KISUMU(CORAM: TUNOI, O’KUBASU, JJ.A. & ONYANGO OTIENO, AG.
J.A.)CIVIL APPEAL NO. 135 OF 2000 BETWEEN
JOE LOIUS MARTIN…………………………………….. APPELLANT AND SHYAM SINGH BANSAL RAM.………………………. RESPONDENT (Appealfrom the Ruling and Order of the High Court of Kenya at Kisumu (Justice Wambilyangah) dated 22 nd March, 2000 in H.C.C.S. NO. 15 OF 1991 (O.S.) ******************* ORDER OF THE COURT
Both Counsel agree that this appeal was instituted in the name of Joe Louis Martin, who at the time the appeal was instituted, was dead. Rule 83(1) states that an appeal shall not be instituted in the name of a person who is dead but may be instituted in the name of his legal representative.
Under these circumstances, the appeal is incompetent and it is struck out. The respondent will have costs of the appeal.
Made at Kisumu this 23rd day of March, 2004. P. K. TUNOI JUDGE OF APPEAL E. O. O’KUBASU JUDGE OF APPEAL J. W. ONYANGO OTIENO AG. JUDGE OF APPEAL
I certify that this is a true copy of the original. DEPUTY REGISTRAR