[2009] KEHC 2046 (KLR)
The court held that since the appellant died and no application for substitution was made within one year, the appeal abated by operation of law under Order 23 Rule 3(2) of the Civil Procedure Rules. Substitution of the appellant is not legally possible unless the appeal is first revived, which requires a specific...
Source-derived case information.
- Citation
- [2009] KEHC 2046 (KLR)
- Parties
- Appellant: Mariam Mohamed; Respondent: Salim Thoya
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 115 of 2004
- Procedural Posture
- Civil Case / Ruling on Application for Substitution After Abatement of Appeal
- Outcome
- application dismissed
- Legal Topics
- Abatement of Suit, Substitution of Parties, Revival of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mariam Mohamed
Appellant
Salim Thoya
Respondent
Procedural Posture
Civil Case / Ruling on Application for Substitution After Abatement of Appeal
Legal Issues
- 1 Whether substitution of the appellant is possible after abatement of the appeal.
- 2 Whether an order of revival of the appeal is required before substitution can be sought.
- 3 Whether the application for substitution is competent in the absence of a prayer for revival.
Ratio Decidendi
The court held that since the appellant died and no application for substitution was made within one year, the appeal abated by operation of law under Order 23 Rule 3(2) of the Civil Procedure Rules. Substitution of the appellant is not legally possible unless the appeal is first revived, which requires a specific application under Order 23 Rule 8(2). As there was no such application for revival, the application for substitution was incompetent and had to be dismissed.
Court Disposition
application dismissed
Orders
- The application for substitution is dismissed.
- There shall be no order as to costs.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA
Civil Case 115 of 2004
MARIAM MOHAMED …………………………………………....APPELLANT
VERSUS
SALIM THOYA ……………………………………………..…..RESPONDENT
R U L I N G
I have considered the application and the submissions by both counsel. The Appellant died on 14th November 2005. No application for substitution was made under sub-rule 1 within one year and as a result the suit abated. Under rule 3(2) of Order 23 of the Civil Procedure Rules, the legal effect is mandatory. As a result of the foregoing there is no appeal pending except for purposes of costs if the Respondent were to apply.
The appeal having abated, substitution of the appellant is not possible in law. The applicant would be required in law to obtain an order of revival of the appeal first as an initial prayer before seeking substitution. There is no prayer to revive the suit under Rule 8(2) of Order 23 of Civil Procedure Rules.
It follows that the application hereby must fail. I hereby dismiss the same. There shall be no order as to costs for how as the suit has abated and the Estate of deceased has not been enjoined. Orders accordingly.
Dated at Mombasa this 2nd day of September 2009.
M.K. IBRAHIM
J U D G E