[2009] KEHC 3447 (KLR)
The court found that Rule 83(1) of the Court of Appeal Rules is explicit in prohibiting the institution of an appeal in the name of a deceased person. Since Peter Kairu Kiai, the named appellant, died before the judgment of the superior court and before the appeal was filed, the appeal was incompetent ab initio. The...
Source-derived case information.
- Citation
- [2009] KEHC 3447 (KLR)
- Parties
- Applicant: Lawrence M. Maikweki; Appellant: Peter Kairu Kiai; Respondent: Michael Ndichu Ndungi; Respondent: Timothy Kamau Githogori; Respondent: David Njoroge Mbugua
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 36 of 2008
- Procedural Posture
- Civil Appeal / Application to Strike Out Appeal
- Outcome
- application allowed; appeal struck out
- Judges
- PK Tunoi, CA Otieno
- Legal Topics
- Appeal Institution, Capacity of Parties, Striking Out Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Lawrence M. Maikweki
Applicant
Peter Kairu Kiai
Appellant
Michael Ndichu Ndungi
Respondent
Timothy Kamau Githogori
Respondent
David Njoroge Mbugua
Respondent
Procedural Posture
Civil Appeal / Application to Strike Out Appeal
Legal Issues
- 1 Whether an appeal can be instituted in the name of a deceased person contrary to the Court of Appeal Rules.
- 2 Whether Civil Appeal No. 36 of 2008 is incompetent for being filed in the name of a dead person.
Ratio Decidendi
The court found that Rule 83(1) of the Court of Appeal Rules is explicit in prohibiting the institution of an appeal in the name of a deceased person. Since Peter Kairu Kiai, the named appellant, died before the judgment of the superior court and before the appeal was filed, the appeal was incompetent ab initio. The rule is not qualified and does not permit exceptions; only a legal representative may institute such an appeal. The court therefore allowed the application and struck out Civil Appeal No. 36 of 2008 as it was improperly instituted.
Court Disposition
application allowed; appeal struck out
Orders
- Civil Appeal No. 36 of 2008 is struck out.
- No orders as to costs.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
CIVIL APPEAL NO 36 OF 2008
LAWRENCE M. MAIKWEKI................................APPLICANT/1ST RESPONDENT
AND
PETER KAIRU KIAI .............................................1ST RESPONDENT/APPELLANT
MICHAEL NDICHU NDUNGI.......................................................2ND RESPONDENT
TIMOTHY KAMAU GITHOGORI .................................................3RD RESPONDENT
DAVID NJOROGE MBUGUA.......................................................4TH RESPONDENT
(Application to strike out Civil Appeal No. 36 of 2008 being an appeal from the judgment of the High Court of Kenya at Nakuru (Kimaru, J) dated 14th November, 2006 in H.C.C.C. No. 464 of 1998)
******************
RULING OF THE COURT
By the Notice of Motion dated 3rd March, 2008 the applicant seeks an order under rule 80 of the Court of Appeal Rules that Civil Appeal No. 36 of 2008 - Peter Kairu Kiai vs Larence M. Maikwei & 3 Othersbe struck out on the ground that the appeal was instituted in the name of a dead person in contravention of rule 83(1) of the Court of Appeal Rules.
It is conceded that the appellant Peter Kairu Kiai died on 17th July, 2006. This has been confirmed by Gazette Notice of 8034 of 6th October, 2006 relating to his estate. It is apparent that Peter Kairu Kiai the (appellant) died even before the impugned judgment of the superior court was delivered on 14th November, 2006.
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 atrue copy of the original.
DEPUTY REGISTRAR