[2024] KECA 1809 (KLR)
The court found that the respondent, Hellen Auma Ojuok, died before the appeal was filed and that the applicant, Patrick Ojuok Ouma, had since obtained a grant of Letters of Administration for her estate. The court had previously directed that substitution be effected within 60 days. As there was no opposition to...
Source-derived case information.
- Citation
- [2024] KECA 1809 (KLR)
- Parties
- Applicant: Mary Omollo Odongo; Applicant: Apollo Odhiambo Guya; Respondent: Hellen Auma Ojuok; Applicant: Patrick Ojuok Ouma
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Application e132 of 2021
- Procedural Posture
- Civil Application / Ruling on Application for Substitution of Deceased Respondent and Vacation of Status Quo Order
- Outcome
- Application for substitution allowed; application for vacation of status quo order declined.
- Judges
- MSA Makhandia
- Legal Topics
- Substitution of Parties, Appeal Procedure, Letters of Administration, Death of Respondent
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Omollo Odongo
Applicant
Apollo Odhiambo Guya
Applicant
Hellen Auma Ojuok
Respondent
Patrick Ojuok Ouma
Applicant
Procedural Posture
Civil Application / Ruling on Application for Substitution of Deceased Respondent and Vacation of Status Quo Order
Legal Issues
- 1 Whether the applicant, as administrator of the deceased respondent's estate, should be substituted as respondent in the pending appeal.
- 2 Whether the court has jurisdiction to vacate the status quo order issued on 28th November 2022.
Ratio Decidendi
The court found that the respondent, Hellen Auma Ojuok, died before the appeal was filed and that the applicant, Patrick Ojuok Ouma, had since obtained a grant of Letters of Administration for her estate. The court had previously directed that substitution be effected within 60 days. As there was no opposition to the application and the applicant had satisfied the procedural requirements for substitution, the court granted the prayer for substitution. However, the court declined to entertain the prayer for vacation of the status quo order, holding that such jurisdiction lies with a full bench and not a single judge.
Court Disposition
Application for substitution allowed; application for vacation of status quo order declined.
Orders
- Patrick Ojuok Ouma is substituted as respondent in place of Hellen Auma Ojuok (deceased).
- Prayer for vacation of the status quo order is declined for want of jurisdiction by a single judge.
Full Case Text
Judgment text and source record
22 paragraphs
Odongo & another v Ojuok (Civil Application e132 of 2021) [2024] KECA 1809 (KLR) (20 December 2024) (Ruling)
Neutral citation: [2024] KECA 1809 (KLR)
Republic of Kenya
In the Court of Appeal at Kisumu
Civil Application e132 of 2021
MSA Makhandia, JA
December 20, 2024
Between
Mary Omollo Odongo
1st Applicant
Apollo Odhiambo Guya
2nd Applicant
and
Hellen Auma Ojuok
Respondent
(An application by Patrick Ojuok Ouma for substitution of the respondent (deceased) as the administrator of the estate and vacation of the status quo order issued on 28th November 2022 arising from the Judgment of the Environment and Land Court at Kisumu (Ombwayo, J.) dated 13th March 2020 in ELC Case No. 13 of 2019)
Ruling
1. This is an application by Patrick Ojuok Ouma, who claims to be an Interested Party in this appeal. He seeks that this Court be pleased to substitute Hellen Auma Ojuok, deceased, the respondent in the pending appeal with himself as he is the administrator of her estate. The application is pursuant to sections 3A and 3B of the Appellate Jurisdiction Act, Rule 99 of the Appellate Jurisdiction Rules (sic) and all other enabling provisions of the law.
2. From the grounds and the supporting affidavit sworn by the applicant, the following undisputed facts emerge, that: the respondent died on 7th February 2021 before the appeal was filed; the judgment, the subject matter of the appeal was delivered on 13th March 2020; the Letters of Administration in respect of the estate of the deceased were granted to the applicant on 7th January 2023; and that when the appeal came up for hearing, the issue of the death of the deceased was raised and the Court directed that the deceased respondent be substituted within 60 days, hence the instant application.
3. This far, the application is unopposed since the appellants have not filed any papers in opposition to the application. Having carefully considered the application, the grounds in support thereof as well as the supporting affidavit, I am satisfied that indeed the respondent died on 7th February 2021, that on 17th January 2023, a grant of Letters of Administration intestate was issued to the applicant by the Principal Magistrate’s Court at Maseno in Succession Cause No. E139 of 2022.
4. In the premises, and there being no challenge to the application by the appellants, I grant prayer 2 of the application. However, I am unable to entertain prayer 3 of the application as the jurisdiction to grant such prayer is only exercisable by a full bench of this Court.
DATED AND DELIVERED AT KISUMU THIS 20TH DAY OF DECEMBER, 2024. ASIKE-MAKHANDIA...….....................JUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR