[2022] KECA 1129 (KLR)
The court held that, upon being informed by the applicant's advocate of the applicant's death, and in the absence of formal proof such as a death certificate or burial permit, it would be improper to proceed with the hearing of the application for leave to appeal out of time. The court emphasized the necessity of...
Source-derived case information.
- Citation
- [2022] KECA 1129 (KLR)
- Parties
- Applicant: Francis Maina Mathii; Respondent: Peter Nguru Bedan
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal (Application) 35 of 2019
- Procedural Posture
- Civil Appeal / Application for Leave to Appeal Out of Time
- Outcome
- Application adjourned pending clarification and/or substitution.
- Judges
- LK Kimaru
- Legal Topics
- Leave to Appeal Out of Time, Substitution of Parties, Death of Litigant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Maina Mathii
Applicant
Peter Nguru Bedan
Respondent
Procedural Posture
Civil Appeal / Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the court should grant leave to appeal out of time to the applicant.
- 2 Whether the proceedings can continue in light of the applicant's reported death without formal proof or substitution.
Ratio Decidendi
The court held that, upon being informed by the applicant's advocate of the applicant's death, and in the absence of formal proof such as a death certificate or burial permit, it would be improper to proceed with the hearing of the application for leave to appeal out of time. The court emphasized the necessity of formal documentation to confirm the death and, if confirmed, the requirement for a personal representative to be substituted as a party before the matter can proceed. Accordingly, the hearing was adjourned pending the filing of the requisite documents or an application for substitution. No orders as to costs were made.
Court Disposition
Application adjourned pending clarification and/or substitution.
Orders
- Hearing of the application is adjourned until documents confirming the applicant's death are filed or a personal representative is substituted.
- No orders as to costs.
Full Case Text
Judgment text and source record
19 paragraphs
Mathii v Bedan (Civil Appeal (Application) 35 of 2019) [2022] KECA 1129 (KLR) (19 October 2022) (Ruling)
Neutral citation: [2022] KECA 1129 (KLR)
Republic of Kenya
In the Court of Appeal at Nyeri
Civil Appeal (Application) 35 of 2019
LK Kimaru, JA
October 19, 2022
Between
Francis Maina Mathii
Applicant
and
Peter Nguru Bedan
Respondent
(An application for leave to appeal out of time against the Ruling/Order of the High Court of Kenya at Murang’a (Kemei, J.) dated 31st July, 2018inE.L.C. No. 415 “B” of 2017 Environment & Land Case 415B of 2017 )
Ruling
1. The Applicant, Francis Maina Mathii filed an application pursuant to Rule 4 of the Court of Appeal Rules seeking to be granted leave to appeal out of time from the decision rendered by the Murang’a Land and Environment Court that was rendered on 31st July, 2018. The application was lodged in this Court on 10th February, 2021. In an email written to the Deputy Registrar of this Court dated 18th October, 2022, by G. K. Kibira & Company Advocates, the Court has been informed that the Applicant died on 5th November, 2021. No evidence in form of a death certificate or a burial permit was placed before the Court to support the said Advocate’s assertion that indeed the Applicant is deceased. Despite of that fact, this Court cannot ignore the information and proceed with the hearing of the application before a required clarification is made.
2. In the circumstances therefore, the hearing of this application is adjourned until the requisite documents are filed in Court indicating that indeed the Applicant is deceased or if the Applicant’s death is confirmed, until an appropriate application is filed by a personal representative to substitute him as a party to these proceedings.
3. There shall be no orders as to costs.
DATED AT NYERI THIS 19TH DAY OF OCTOBER, 2022. L. KIMARUJUDGE OF APPEAL.................................................I certify that this is a true copy of the original.DEPUTY REGISTRAR