[2009] KECA 412 (KLR)
The court held that Rule 83(1) is clear and unqualified: an appeal cannot be instituted in the name of a deceased person. Since Civil Appeal No. 36 of 2008 was instituted in the name of a dead person and not in the name of a legal representative, the appeal is incompetent. The application to strike out the appeal...
Source-derived case information.
- Citation
- [2009] KECA 412 (KLR)
- Parties
- Plaintiff: Lawrence M. Maikweki; Defendant: Michael Ndichu Ndungi; Defendant: Peter Kairu Kiai; Defendant: Timothy Kamau Githogori; Defendant: David Njoroge Mbugua
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 464 of 1998
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Appeal
- Outcome
- application allowed; appeal struck out
- Legal Topics
- Appeal Institution, Legal Representative, Death of Party, Striking Out Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lawrence M. Maikweki
Plaintiff
Michael Ndichu Ndungi
Defendant
Peter Kairu Kiai
Defendant
Timothy Kamau Githogori
Defendant
David Njoroge Mbugua
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Appeal
Legal Issues
- 1 Whether an appeal can be instituted in the name of a deceased person.
- 2 Whether Civil Appeal No. 36 of 2008 is competent having been filed in the name of a dead person.
Ratio Decidendi
The court held that Rule 83(1) is clear and unqualified: an appeal cannot be instituted in the name of a deceased person. Since Civil Appeal No. 36 of 2008 was instituted in the name of a dead person and not in the name of a legal representative, the appeal is incompetent. The application to strike out the appeal was therefore allowed, and the appeal was struck out with no order as to costs.
Court Disposition
application allowed; appeal struck out
Orders
- Civil Appeal No. 36 of 2008 is struck out.
- No order as to costs.
Full Case Text
Judgment text and source record
10 paragraphs
IN THE COURT OF APPEAL OF KENYA AT NAKURU
Civil Case 464 of 1998
LAWRENCE M. MAIKWEKI……………..……..……PLAINTIFF
VERSUS
MICHAEL NDICHU NDUNGI………..………..1ST DEFENDANT
PETER KAIRU KIAI………….……………….2ND DEFENDANT
TIMOTHY KAMAU GITHOGORI…..…...…….3RD DEFENDANT
DAVID NJOROGE MBUGUA……………..…4TH DEFENDANT
RULING
Rule 83(1) provides: 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.” It is clear from that rule that an appeal cannot be instituted in the name of a dead person and that it can only be instituted in the name of the legal representative of the deceased person. The rule is not qualified in any way. In the result Civil Appeal No. 36 of 2008 is incompetent having been instituted in the name of a dead person. Accordingly, the application is allowed with the result that Civil Appeal No. 36 of 2008 is struck out with no orders as to costs. Dated and delivered at Nakuru this 6th day of March, 2009 P. K. TUNOI ......................... JUDGE OF APPEAL E.M. GITHINJI ........................ JDUGE OF APPEAL J.W. ONYANGO OTIENO ................................... JUDGE OF APPEAL I certify that this is a true copy of the original. DEPUTY REGISTRAR