[2014] KEHC 3631 (KLR)

[2014] KEHC 3631 (KLR)

The court found that the appellant died on 7th May 2013 and no application for substitution had been made within the one-year period prescribed by Order 24 Rule 3 of the Civil Procedure Rules. The court held that the appeal had therefore abated by operation of law. The court further held that, as a result of the abatement, the judgment of the lower court stands confirmed as valid. The prayer for execution of the decree was abandoned by the applicant, and the court saw no reason to condemn the estate of the deceased appellant to pay costs. The application was allowed in terms of prayers 1 and 2 only.

Citation
[2014] KEHC 3631 (KLR)
Parties
Appellant: Peris Muthoni Rucathi; Respondent: Muriithi Rucathi
Court
High Court
Court Station
High Court at Kerugoya
Jurisdiction
Kenya
Judgment Date
31 July 2014
Case Number
Environment & Land Case 19 of 2013
Procedural Posture
Civil Appeal / Ruling on Notice of Motion to Mark Appeal as Abated Due to Death of Appellant
Outcome
Application allowed in terms of prayers 1 and 2; appeal marked as abated; judgment of lower court confirmed; no order as to costs.
Judges
BN Olao
Legal Topics
Abatement of Appeal, Substitution of Parties, Succession Proceedings
Source Language
English
Civil Procedure Land and Property Abatement of Appeal Substitution of Parties Succession Proceedings

Case Brief

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Parties

Peris Muthoni Rucathi

Appellant

Muriithi Rucathi

Respondent

Procedural Posture

Civil Appeal / Ruling on Notice of Motion to Mark Appeal as Abated Due to Death of Appellant

Legal Issues

  1. 1 Whether the appeal should be marked as abated due to the death of the appellant and lack of substitution within the prescribed period.
  2. 2 Whether the judgment of the lower court should be confirmed as valid following abatement of the appeal.
  3. 3 Whether the respondent is entitled to costs against the estate of the deceased appellant.

Ratio Decidendi

The court found that the appellant died on 7th May 2013 and no application for substitution had been made within the one-year period prescribed by Order 24 Rule 3 of the Civil Procedure Rules. The court held that the appeal had therefore abated by operation of law. The court further held that, as a result of the abatement, the judgment of the lower court stands confirmed as valid. The prayer for execution of the decree was abandoned by the applicant, and the court saw no reason to condemn the estate of the deceased appellant to pay costs. The application was allowed in terms of prayers 1 and 2 only.

Court Disposition

Application allowed in terms of prayers 1 and 2; appeal marked as abated; judgment of lower court confirmed; no order as to costs.

Orders

  • The appeal is marked as having abated due to the death of the appellant and lack of substitution within one year.
  • The judgment of Hon. Mr. Kimutai K.T. in Senior Resident Magistrate’s Court Wang’uru Misc. Succession Cause No 22 of 2004 delivered on 14th December 2006 is confirmed as valid.