[2002] KEHC 823 (KLR)
The court held that the Rent Restriction Act specifically provides for the widow of a deceased tenant, who resided with him at the time of his death, to be treated as a tenant. Therefore, Amina Musa Ibrahim, as the widow, is entitled to be joined as a party to the appeal in place of her deceased husband. The court...
Source-derived case information.
- Citation
- [2002] KEHC 823 (KLR)
- Parties
- Appellant: Musa Ibrahim Osman; Respondent: Leila Khamis Shikely; Applicant: Amina Musa Ibrahim
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 55 of 1994
- Procedural Posture
- Civil Appeal / Application for Substitution of Deceased Appellant
- Outcome
- Application allowed; applicant joined as appellant in place of deceased husband.
- Legal Topics
- Substitution of Parties, Tenancy Rights on Death, Rent Restriction Act, Abatement of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Musa Ibrahim Osman
Appellant
Leila Khamis Shikely
Respondent
Amina Musa Ibrahim
Applicant
Procedural Posture
Civil Appeal / Application for Substitution of Deceased Appellant
Legal Issues
- 1 Whether the widow of a deceased appellant can be substituted as a party to continue the appeal under the Rent Restriction Act.
- 2 Whether a grant of representation is required for the widow to be joined as appellant.
- 3 Whether the provisions of Order 23 Civil Procedure Code regarding abatement of suit apply in this context.
Ratio Decidendi
The court held that the Rent Restriction Act specifically provides for the widow of a deceased tenant, who resided with him at the time of his death, to be treated as a tenant. Therefore, Amina Musa Ibrahim, as the widow, is entitled to be joined as a party to the appeal in place of her deceased husband. The court further held that no grant of representation is required because she is pursuing her own personal interest in the tenancy, not an interest as part of the deceased's estate. The provisions of Order 23 Civil Procedure Code regarding abatement of suit do not apply in this context, as the statutory scheme under the Rent Restriction Act governs the succession of tenancy rights.
Court Disposition
Application allowed; applicant joined as appellant in place of deceased husband.
Orders
- Amina Musa Ibrahim is joined as appellant in place of Musa Ibrahim Osman.
- The appeal shall proceed in the name of Amina Musa Ibrahim.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL APPEAL NO.55 OF 1994
MUSA IBRAHIM OSMAN ………………………………… APPELLANT
VERSUS
LEILA KHAMIS SHIKELY ……………………………… RESPONDENT
R U L I N G
In this appeal the Appellant is said to have died on 9th November, 1999. Amina Musa Ibrahim, his widow has made an application dated 14th May, 2001 that she may be joined as an appellant in place of her deceased husband in order to proceed with the appeal. The Applicant states that at all times she was residing with her husband in the premises and she continues to reside in the premises after his death. Under the provisions of Rent Restriction Act Cap 296 the definition of tenant includes “the widow of a tenant who was residing with him at the time of his death.
This application is made under Order 23 Civil Procedure Rules which permits a personal representative to be joined as a party where the cause of action survives the deceased. In this case the authority to take over the tenancy of the deceased is given by the Rent Restriction Act Cap 296. This act does not require a personal representative to take over the tenancy. The Act simply specifies the categories of persons who are to be treated as tenants and in whom the interest in the tenancy shall devolve in the event of the tenant dying. The act does not contemplate the situation where the estate of the deceased tenant takes over the tenancy. The act protects the occupants of the premises.
It is my view therefore that the widow of the appellant is entitled to be joined as a party to this appeal and to proceed with appeal in place of her deceased husband. No grant of representation is required as she is pursuing her personal interest which do not fall as part of the estate of her deceased husband. The provisions of Order 23 Civil Procedure Code as to abatement of suit does not arise. I therefore grant orders as prayed in the application dated the 14th May, 2001 with costs to the applicant.
Dated at Mombasa this 4th Day ofFebruary, 2002.
J. KHAMIMINWA
COMMISSIONER OF ASSIZE
Read in the presence of: Mr. Khatib and Ms. Kasmani.
J. KHAMINWA
COMMISSIONER OF ASSIZE