[2021] KECA 61 (KLR)
The Court of Appeal held that since the respondents had died more than a year prior and the application for their substitution had been dismissed, the appeal could not proceed. The dismissal of the application for revival of the appeal meant that the appeal had abated by operation of law. The court therefore marked...
Source-derived case information.
- Citation
- [2021] KECA 61 (KLR)
- Parties
- Applicant: Edward Njagi Mugo; Applicant: Gideon Kiura Mugo; Respondent: Stephen Muna Mugo; Respondent: Mugo Nyaga; Respondent: Anthony Mbiri Ndwiga
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 1 of 2013
- Procedural Posture
- Civil Appeal / Order on Abatement of Appeal
- Outcome
- appeal abated
- Judges
- DK Musinga, MSA Makhandia, F Sichale
- Legal Topics
- Abatement of Appeal, Substitution of Parties, Revival of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edward Njagi Mugo
Applicant
Gideon Kiura Mugo
Applicant
Stephen Muna Mugo
Respondent
Mugo Nyaga
Respondent
Anthony Mbiri Ndwiga
Respondent
Procedural Posture
Civil Appeal / Order on Abatement of Appeal
Legal Issues
- 1 Whether the appeal should abate following the death of the respondents and failure to substitute them within the prescribed time.
- 2 Whether the application for revival of the appeal was properly dismissed.
Ratio Decidendi
The Court of Appeal held that since the respondents had died more than a year prior and the application for their substitution had been dismissed, the appeal could not proceed. The dismissal of the application for revival of the appeal meant that the appeal had abated by operation of law. The court therefore marked the appeal as abated, bringing the matter to a close. The decision was based on the mandatory provisions of the Civil Procedure Rules regarding abatement and substitution of parties, and the absence of any valid application to revive the appeal after the initial application was dismissed.
Court Disposition
appeal abated
Orders
- The appeal is marked as having abated, the respondents having died more than a year ago and an application for their substitution having been dismissed.
Full Case Text
Judgment text and source record
24 paragraphs
Mugo & another v Mugo & 2 others (Civil Appeal 1 of 2013) [2021] KECA 61 (KLR) (8 October 2021) (Order)
Neutral citation number: [2021] KECA 61 (KLR)
Republic of Kenya
In the Court of Appeal at Nyeri
Civil Appeal No. 1 of 2013
DK Musinga, MSA Makhandia & F Sichale, JJA
October 8, 2021
Between
Edward Njagi Mugo
1st Applicant
Gideon Kiura Mugo
2nd Applicant
and
Stephen Muna Mugo
1st Respondent
Mugo Nyaga
2nd Respondent
Anthony Mbiri Ndwiga
3rd Respondent
(Being an appeal from the proceedings and judgment dated 16th day of November, 2011 of the High Court at Embu by (Hon. Lady Justice H.M. Okwengu and delivered by Hon. Lady Justice H. Ongu’di in Embu High Court Civil Appeal No. 27 of 2000)
Order
1The appeal is against the respondents who are deceased. An application for revival of the appeal was dismissed.
2. The appeal is hereby marked as having abated, the respondents having died more than a year ago and an application for their substitution having been dismissed.
DATED AT NAIROBI THIS 8THDAY OF OCTOBER, 2021D.K. MUSINGA (P).......................JUDGE OF APPEALASIKE MAKHANDIA......................JUDGE OF APPEALF. SICHALE......................JUDGE OF APPEALI certify that this is a truecopy of the original.SignedDEPUTY REGISTRAR