[2019] KEELC 4699 (KLR)
The court found that the appeal had abated approximately three years prior due to the death of the appellant and the failure to substitute a legal representative within the time prescribed by law. No plausible reason was provided for the continued pendency of the matter, and there was no evidence that any person...
Source-derived case information.
- Citation
- [2019] KEELC 4699 (KLR)
- Parties
- Appellant: M’Ebai Gatulukume; Respondent: Joseph Maingi M’Imathiu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 60 of 2008
- Procedural Posture
- Civil Appeal / Ruling on Application for Dismissal and Abatement of Appeal
- Outcome
- Appeal abated and dismissed; stay orders discharged; costs awarded to respondent.
- Legal Topics
- Abatement of Suit, Substitution of Parties, Appeal Dismissal, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M’Ebai Gatulukume
Appellant
Joseph Maingi M’Imathiu
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Dismissal and Abatement of Appeal
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution and abatement due to the death of the appellant and failure to substitute within the prescribed time.
- 2 Whether the orders of stay of execution should be discharged given the abatement of the suit.
- 3 Whether any party has legal standing to continue the litigation without proper substitution.
Ratio Decidendi
The court found that the appeal had abated approximately three years prior due to the death of the appellant and the failure to substitute a legal representative within the time prescribed by law. No plausible reason was provided for the continued pendency of the matter, and there was no evidence that any person with legal standing had taken out a grant to represent the deceased appellant's estate. The court noted that the stay of execution order had been in place for over ten years without the appeal being prosecuted, which constituted an abuse of the court process. Accordingly, the court held that the suit had abated by operation of law, the stay orders should be discharged, and the...
Court Disposition
Appeal abated and dismissed; stay orders discharged; costs awarded to respondent.
Orders
- This suit is marked as abated pursuant to Order 24 Rule 3 and Rule 9 of the Civil Procedure Rules.
- The orders of stay of execution granted on 14.11.2008 are hereby discharged.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC CASE NO. 60 OF 2008
M’EBAI GATULUKUME ......................APPELLANT
VERSUS
JOSEPH MAINGI M’IMATHIU .........RESPONDENT
RULING
1. On 5. 2.2019, Mr. Mutunga holding brief for Kiome for respondent applied for the dismissal of this appeal averring that on 27. 2.2014, the court allowed the appellant to be substituted (appellant had died), but that this order was not complied with and that on 3. 5.2012 appellants were granted 30 days to file appeal failure to which the appeal would be dismissed and that to date appellant has not filed an appeal.
2. The counsel for appellant avers that negotiations have been going on and that parties are about to settle the matter.
3. The chronology of events in this file depicts the depth of abuse of court’s processes.
4. A judgment was delivered before Meru CMCC No. 495 of 2004 on 25. 6.2008 and a month later, a memorandum of appeal was filed. Few months later on 14. 11. 2008, the then appellant obtained a stay of execution of the lower court judgment pending the appeal herein vide the application filed under a certificate of urgency on 9. 7.2008.
5. Thereafter, there was no more urgency in the case. The Record of Appeal was not field and the appeal has never been heard.
6. Attempts to have the appeal dismissed hit a snag when in a ruling dated 3. 5.2012, the court gave appellant 30 days to prepare the Record Of Appeal, in default of which the respondent was at liberty to apply for dismissal of the appeal. The appellant died on 5. 5.2013 and by then the courts orders of 3. 5.2012 had not been complied with.
7. A legal representative was appointed to take over as appellant. He was known as David Mwenda Maingi. He also did not make any efforts to have the appeal prosecuted.
8. Thus respondent filed an application on 5. 12. 2014 for dismissal of the suit. As fate would dictate, before this application could be prosecuted, the appellant known as David Mwenda too died. The court was informed of his death on 22. 10. 2015.
9. Since then, the matter stalled, including the application for dismissal. As at 30. 4.2018, the court was being told that appellant’s counsel was yet to file the application for substitution.
10. I find that this suit abated about three years ago (around 2015) and there is no plausible reason as to why the matter is active. Who is this person who is giving instructions on negotiations etcetera yet he has not taken out the grant in respect of the estate of David Mwenda?. What legal mandate does this person have to perpetuate litigation herein?. It is not lost to this court that the appellants side obtained an order of stay of execution more than ten years ago and that this order has never been vacated, yet Judgments have a statutory lifespan.
11. I proceed to give final orders as follows:
1. Pursuant to provisions of order 24 rule 3 and rule 9 of the Civil procedure rules this suit is marked as abated.
2. The orders of stay of execution granted on 14. 11. 2008 are hereby discharged.
3. The lower court filed is to be severed from this file and to be remitted back to the lower court.
4. This appeal file is marked as CLOSED and is to be taken to the archives.
5. A copy of this ruling is to be place in the lower court file.
6. Respondent is awarded costs of this suit.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS DAY OF 13TH FEBRUARY, 2019 IN THE PRESENCE OF:-
C/A: Kananu
Nyakwara holding brief for present
Miss Nyaga for appellant
HON. LUCY. N. MBUGUA
ELC JUDGE