[2006] KEHC 2172 (KLR)

[2006] KEHC 2172 (KLR)

The court found that, due to the death of the respondent and in the absence of substitution, the appeal should be marked as abated rather than dismissed. Furthermore, the court ordered the release to the appellant of the Kshs. 100,000 deposited in the joint names of the advocates at Barclays Bank of Kenya, Karatina,...

Source-derived case information.

Citation
[2006] KEHC 2172 (KLR)
Parties
Appellant: Joseph Nderitu Ihuthia; Respondent: Jason Isiaga Alimasa
Court
High Court
Court Station
High Court at Nyeri
Jurisdiction
Kenya
Case Number
Civil Appeal 52 of 2000
Procedural Posture
Civil Appeal / Ruling on Abatement and Release of Deposit
Outcome
Appeal marked as abated; order for release of deposit to appellant.
Legal Topics
Abatement of Appeal, Release of Security, Death of Party
Source Language
en
Civil Procedure Abatement of Appeal Release of Security Death of Party

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Parties

Joseph Nderitu Ihuthia

Appellant

Jason Isiaga Alimasa

Respondent

Procedural Posture

Civil Appeal / Ruling on Abatement and Release of Deposit

Legal Issues

  1. 1 Whether the appeal should be dismissed or marked as abated due to the death of the respondent.
  2. 2 Whether the sum of Kshs. 100,000 deposited in joint advocates' names should be released to the appellant.

Ratio Decidendi

The court found that, due to the death of the respondent and in the absence of substitution, the appeal should be marked as abated rather than dismissed. Furthermore, the court ordered the release to the appellant of the Kshs. 100,000 deposited in the joint names of the advocates at Barclays Bank of Kenya, Karatina, together with all accrued interest up to the date of payment. The decision was based on the application of Order XLI Rule 31 of the Civil Procedure Rules and the absence of any objection or representation from the respondent's side.

Court Disposition

Appeal marked as abated; order for release of deposit to appellant.

Orders

  • The appeal is marked as abated.
  • The sum of Kshs. 100,000 deposited in the joint names of the advocates at Barclays Bank of Kenya, Karatina, together with all accrued interest up to the date of payment, shall be released to the appellant.