[2021] KECA 903 (KLR)
The Court found that although the application for revival and substitution was filed approximately six and a half years after the death of the respondent, the applicant had made serious and genuine efforts to identify the administrators of the deceased's estate. The failure to substitute within time was not due to...
Source-derived case information.
- Citation
- [2021] KECA 903 (KLR)
- Parties
- Applicant: Joseph Kirui; Respondent: Said K. Keitany (deceased); Respondent: Sally Jeptoo Keitany; Respondent: Mohammed Kiptarus Keitany
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Application 81 of 2013
- Procedural Posture
- Civil Application / Application for Revival and Substitution After Abatement of Appeal
- Outcome
- Application allowed. Appeal revived and substitution of parties granted.
- Judges
- GG Okwengu
- Legal Topics
- Abatement of Appeal, Substitution of Parties, Revival of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Kirui
Applicant
Said K. Keitany (deceased)
Respondent
Sally Jeptoo Keitany
Respondent
Mohammed Kiptarus Keitany
Respondent
Procedural Posture
Civil Application / Application for Revival and Substitution After Abatement of Appeal
Legal Issues
- 1 Whether the appeal should be revived after abatement due to the death of the respondent and delay in substitution.
- 2 Whether the applicant demonstrated sufficient cause for the delay in seeking substitution.
- 3 Whether the court should exercise its discretion to allow substitution and revival of the appeal in the interests of justice.
Ratio Decidendi
The Court found that although the application for revival and substitution was filed approximately six and a half years after the death of the respondent, the applicant had made serious and genuine efforts to identify the administrators of the deceased's estate. The failure to substitute within time was not due to indolence but to the respondents' concealment of the grant of letters of administration. The Court held that this was an appropriate case to apply Article 159 of the Constitution and exercise its discretion to revive the appeal and allow substitution, thereby ensuring substantive justice and fairness. The Court relied on its previous decision in Elizabeth Wanjiru Njenga &...
Court Disposition
Application allowed. Appeal revived and substitution of parties granted.
Orders
- The applicant's motion dated 16th April, 2019 is allowed.
- The appeal is revived and reinstated.
Full Case Text
Judgment text and source record
37 paragraphs
IN THE COURT OF APPEAL
AT KISUMU
(CORAM: OKWENGU, GATEMBU & M’INOTI, JJA.)
CIVIL APPLICATION NO. 81 OF 2013
BETWEEN
JOSEPH KIRUI.................................................... APPLICANT
AND
SAID K. KEITANY ......................................... RESPONDENT
(Appeal from the ruling and order of the High Court of Kenya at Eldoret (P. M. Mwilu, JA) dated 27th January, 2011 and
delivered by (Hon. Azangalala, JA) on 8th February, 2011
in
CONSTITUTIONAL REFERENCE NO. 9 OF 2008)
*************************************
RULING OF THE COURT
[1] Before us is a notice of motion dated 16th April, 2019 in which the applicant, Joseph Kirui seeks to have his appeal against Said K. Keitany (deceased) which abated following the death of the deceased and the failure to have someone substituted in place of the deceased within time, revived and reinstated.
[2] The applicant also seeks to have Sally Jeptoo Keitany and Mohammed Kiptarus Keitanysubstituted in place ofSaid K. Keitany(deceased). In addition the applicant seeks leave to file a supplementary memorandum of appeal bringing the proposed respondents on board.
[3] In an affidavit sworn in support of his motion, the applicant has explained that the delay in having the deceased substituted was due to the difficulties experienced in identifying the administrator of the estate of the deceased. The applicant has annexed several letters addressed to the respondents’ advocates inquiring about the deceased’s estate.
[4] The applicant deposes that the letters were not responded to and that he only came to discover through the High Court Succession Register that the respondents had obtained letters of administration for the estate of the deceased.
[5] The applicant maintains that the administrators concealed the information on the grant of letters of administration with the sole purpose of defeating pending claims against the estate of the deceased. The applicant has also filed written submissions in which he implores the Court to exercise its discretion under Rule 99(3)of theCourt Rulesand allow his application.
[6] The proposed respondents object to the application through a replying affidavit sworn by the 1st proposed respondent Sally Jeptoo Keitany, in which she maintains that the applicant is guilty of laches; and that the appeal is an afterthought. In addition, it is contended that the intended appeal is not arguable as the suit property belongs to the deceased and there was no written agreement for the alleged sale.
[7] We have considered the applicants motion and the respondent’s reply. It is evident to us that although the applicant’s motion has been filed about 6½ years after the death of the deceased, the applicant has demonstrated that he made serious efforts in seeking to identify the persons concerned with the deceased’s estate but his efforts were not successful.
[8] In the circumstances, we think that this is an appropriate situation in which the Court should apply Article 159 of the Constitution, revive the appeal and allow the application for substitution in order to give the applicant an opportunity in having his day in Court. This would allow for substantive justice and fairness. This Court proceeded in similar terms in Elizabeth Wanjiru Njenga & Another -vs- Margaret Wanjiru Kinyara & 2 Others [2018] eKLR, with which we agree.
[9] Accordingly, we allow the applicant’s motion dated 16th April, 2019 and grant orders as prayed in paragraph (a), (b) and (c). The supplementary record of appeal shall be filed and served within fourteen days from today. Costs shall be in the appeal.
DATED AND DELIVERED AT NAIROBI THIS 19TH DAY OF MARCH, 2021.
HANNAH OKWENGU
…………………….….
JUDGE OF APPEAL
S. GATEMBU KAIRU, FCIArb.
…………………………..
JUDGE OF APPEAL
K. M’INOTI
………………………
JUDGE OF APPEAL
I certify that this is a true
copy of the original.
Signed
DEPUTY REGISTRAR