[2024] KECA 464 (KLR)
The court found that due to the death of the respondent, the application for extension of time could not proceed until compliance with Rule 53 of the Court of Appeal Rules, 2022 regarding substitution of the deceased party. The court therefore removed the application from the cause list to allow the parties to...
Source-derived case information.
- Citation
- [2024] KECA 464 (KLR)
- Parties
- Applicant: Safina Abdul Rehman; Respondent: Willy Kiplangat Abdul
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Application E026 of 2024
- Procedural Posture
- Extension of Time Application / Ruling on Application for Extension of Time to File Notice and Record of Appeal
- Outcome
- Application taken out of the cause list to allow compliance with Rule 53 regarding substitution of deceased respondent.
- Judges
- JM Mativo
- Legal Topics
- Extension of Time, Appeals Process, Abatement of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Safina Abdul Rehman
Applicant
Willy Kiplangat Abdul
Respondent
Procedural Posture
Extension of Time Application / Ruling on Application for Extension of Time to File Notice and Record of Appeal
Legal Issues
- 1 Whether the applicant should be granted leave to file and serve a notice of appeal and record of appeal out of time.
- 2 Whether the death of the respondent affects the continuation of the application.
Ratio Decidendi
The court found that due to the death of the respondent, the application for extension of time could not proceed until compliance with Rule 53 of the Court of Appeal Rules, 2022 regarding substitution of the deceased party. The court therefore removed the application from the cause list to allow the parties to comply with the substitution procedure. The application was neither granted nor dismissed on its merits, but deferred pending compliance with the rules on abatement and substitution.
Court Disposition
Application taken out of the cause list to allow compliance with Rule 53 regarding substitution of deceased respondent.
Orders
- The application is taken out of the cause list to allow the parties to comply with Rule 53 of the Court of Appeal Rules, 2022.
Full Case Text
Judgment text and source record
23 paragraphs
Rehman v Abdul (Civil Application E026 of 2024) [2024] KECA 464 (KLR) (18 April 2024) (Ruling)
Neutral citation: [2024] KECA 464 (KLR)
Republic of Kenya
In the Court of Appeal at Nakuru
Civil Application E026 of 2024
JM Mativo, JA
April 18, 2024
Between
Safina abdul Rehman
Applicant
and
Willy Kiplangat Abdul
Respondent
(Being an application for extension of time to file and serve notice of appeal and record of appeal out of time against the ruling of High Court at Kericho (G.B.M Kariuki, J) delivered on 28th March 2012 in Kericho Succession Cause No.78 of 2003)
Ruling
1. Vide an application dated 26th February 2024 brought under article 159(2) (d) of the Constitution, rule 4 of the Court of Appeal Rules, 2022, the Applicant prays for leave to file and serve a Notice of Appeal together with a Record of Appeal out of time against the Ruling of Hon. Justice G. B.M Kariuki delivered on 28th March 2023 in Kericho Succession Cause No.78 of 2003.
2. The application is supported by grounds on the face of the application and the applicant’s supporting affidavit annexed thereto. The application is un-opposed. However, by letter dated 11th April 2024 Mr. Godwin Langat an Advocate retained by the Family of the Respondent informed this Court that the Respondent has since passed on and he undertook to furnish this Court with a certified copy of the death certificate as and when it is requested.
3. Rule 53 of the Court of Appeal Rules, 2022 provides as follows:Abatement of applications2. A civil application shall not abate on the death of the applicant or the respondent but the Court shall, on the application of any interested person, cause the legal representative of the deceased to be made a party in place of the deceased.
3. If no application is made under subrule (2) within twelve months by the applicant or the respondent, the application shall abate.
4. The person claiming to be the legal representative of a deceased party or any interested person to an application may apply for an order to revive the application which has abated under subrule (3) and, if it is proved that he or she was prevented by sufficient cause from continuing with the application, the court shall revive the application upon such terms as to costs or otherwise as it deems fit.
5. An application under this rule may be made before a single judge or the Court on the date of the hearing.
4. In light of the new developments, the instant application is taken out of the cause list to allow the parties herein to comply with the provisions of rule 53 of the Court of Appeal Rules, 2022.
Dated and Delivered at Nakuru on this 18th day of April, 2024. J. MATIVO...................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDeputy Registrar