[2014] KEHC 2399 (KLR)
The court held that since both respondents had died and the appeal was marked as abated, the application for substitution and revival could not proceed until proper parties were substituted. Counsel for the deceased respondents had no right of audience in the absence of instructing clients. The court returned the...
Source-derived case information.
- Citation
- [2014] KEHC 2399 (KLR)
- Parties
- Appellant: Nzioki Kongu Mutisya; Appellant: Nzau Kongu Mutisya; Appellant: Mbevo Kongu Mutisya; Respondent: Joseph Katuta Kimongo; Respondent: Moses Mulwa Mutua
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 90 of 2001
- Procedural Posture
- Civil Appeal / Ruling on Application for Substitution and Revival After Abatement
- Outcome
- Application not determined; file returned to registry for regularization.
- Judges
- BT Jaden
- Legal Topics
- Abatement of Suit, Substitution of Parties, Revival of Suit, Right of Audience, Land Disputes Tribunal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nzioki Kongu Mutisya
Appellant
Nzau Kongu Mutisya
Appellant
Mbevo Kongu Mutisya
Appellant
Joseph Katuta Kimongo
Respondent
Moses Mulwa Mutua
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Substitution and Revival After Abatement
Legal Issues
- 1 Whether the application for substitution of deceased parties and revival of the abated appeal is properly before the court.
- 2 Whether counsel for the deceased respondents has a right of audience in the absence of instructing clients.
- 3 Whether the suit should be revived for hearing and determination.
Ratio Decidendi
The court held that since both respondents had died and the appeal was marked as abated, the application for substitution and revival could not proceed until proper parties were substituted. Counsel for the deceased respondents had no right of audience in the absence of instructing clients. The court returned the file to the registry for both counsels to regularize their positions, emphasizing that procedural requirements regarding substitution and revival must be strictly adhered to before the matter can proceed.
Court Disposition
Application not determined; file returned to registry for regularization.
Orders
- File returned to registry for both counsels to regularize substitution and revival issues.
- Costs in the cause.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL APPEAL NO. 90 OF 2001
NZIOKI KONGU MUTISYA
NZAU KONGU MUTISYA
MBEVO KONGU MUTISYA ………………………..… APPELLANT
VERSUS
JOSEPH KATUTA KIMONGO
MOSES MULWA MUTUA ………………....……. RESPONDENTS
************************************
(Before B. Thuranira Jaden J)
R U L I N G
1. Following the death of the Respondents herein, this appeal was marked as abated on 10/11/11.
2. Subsequently, the application dated 13/2/12 was filed. The application sought to substitute two of the Appellants who had since passed on. The application also sought to substitute one of the Respondents and further sought orders that the suit be revived for hearing and determination. At the heart of the matter is a land dispute which emanated from the Land Disputes Tribunal.
3. On the date fixed for the hearing of the application, Ms Ngatia the counsel for the Applicants objected to the appearance by Mrs Nzeithe counsel for the Respondents, stating that the said counsel had no instructions as the Respondent had since passed on and therefore the counsel had no client to instruct her and had no right of audience.
4. Mrs Nzei in reply gave highlights of the application dated 13/2/12 and pointed out that she appeared in court since she was served with the application and stated that the person to replace the 1st Respondent was not named or served. Ms Ngatia’s reply was that she was not aware that the 1st Respondent was not alive.
5. The court record clearly reflects that the appeal herein was marked as abated on 10/11/11 following the death of both Respondents. The Appellants had the same firm of Advocates on record then. Ms Ngatia therefore ought to have been aware of the reason why the appeal was abated.
6. Mrs Nzei on the other hand cannot prematurely highlight the lack of merits of the application dated 13/2/12 when she has no instructing client now that both the Respondents are not alive. Mrs Nzei therefore has no right of audience until that issue is regularized.
7. With the foregoing, this file is returned to the registry for both counsels to put their houses in order. Costs in cause.
………………………………………
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 29thday of September2014.
………………………………………
B. THURANIRA JADEN
JUDGE