[2010] KEHC 1988 (KLR)
The court found that the appeal had abated and that there was no valid order granting leave to appeal annexed or cited in the memorandum of appeal. The appeal was therefore a non-starter. Substituting the applicant for the deceased respondent would serve no practical purpose, as the appellants themselves did not...
Source-derived case information.
- Citation
- [2010] KEHC 1988 (KLR)
- Parties
- Appellant: Secily Muthoni; Appellant: Andaline Wanjira Gathuya; Respondent: Waguama Ndiga; Applicant: Alikandar Wathuiya Miano
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 24 of 2008
- Procedural Posture
- Civil Appeal / Ruling on Application for Revival and Substitution
- Outcome
- application dismissed
- Judges
- J Karanja
- Legal Topics
- Abatement of Suit, Revival of Suit, Substitution of Parties, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Secily Muthoni
Appellant
Andaline Wanjira Gathuya
Appellant
Waguama Ndiga
Respondent
Alikandar Wathuiya Miano
Applicant
Procedural Posture
Civil Appeal / Ruling on Application for Revival and Substitution
Legal Issues
- 1 Whether the abated appeal should be revived.
- 2 Whether the applicant should be substituted for the deceased respondent.
- 3 Whether substitution would serve any practical purpose given the status of the appeal.
Ratio Decidendi
The court found that the appeal had abated and that there was no valid order granting leave to appeal annexed or cited in the memorandum of appeal. The appeal was therefore a non-starter. Substituting the applicant for the deceased respondent would serve no practical purpose, as the appellants themselves did not wish to proceed with the appeal and the property in question was already in their names. The court emphasized that it does not grant orders in futility and, accordingly, dismissed the application for revival and substitution.
Court Disposition
application dismissed
Orders
- The application dated 25.2.2010 is dismissed.
- Each party shall bear its own costs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Civil Appeal 24 of 2008
SECILY MUTHONI……………………….…...………1ST APPELLANT
ANDALINE WANJIRA GATHUYA……...……..……..2ND APPELLANT
VERSUS
WAGUAMA NDIGA………………………........…………….RESPONDENT
AND
ALIKANDAR WATHUIYA MIANO………...........….…..……..APPLICANT
R U L I N G
This court dismissed the applicant’s application dated 17. 8.09 for having been filed under the wrong provisions of the law. A similar application was filed again still based on the wrong provisions of the law but Counsel quickly made an oral application to amend the order on which it was premised – an application that was allowed.
The applicant is seeking 2 orders. Firstly, that this suit be revived – an acknowledgement that it has abated and secondly that one ALIKANDAR WATHUIYA MIANO who is the applicant be substituted for the respondent who is now deceased.
Interestingly, Mr. Kariithi who appears for the Appellants has opposed the application saying that the Appeal has abated and it should not be revived. He told the court that the Appellants and the applicant herein are all sisters and the land in question is in the names of the Appellants and there is no property belonging to the deceased respondent and so substituting her will be an exercise in futility.
I have considered the application before me along with the rival affidavits. I have also gone through the file from which this Appeal arises. The appeal was filed by Mr. Kariithi for the Respondents in this Application. He and his clients do not wish the Appeal to proceed and wants the court to declare it as having abated. It is their Appeal. If they do not want it to proceed, of what benefit would that be to the Applicant herein who wants to be substituted as the Respondent?
I have actually observed that the Appeal itself was filed on 6. 3.08 against a decision made on 20. 8.07. There is no order granting leave that was annexed to the Memorandum of Appeal, nor is such order cited in the memorandum. The Appeal is therefore a non starter and even orders of substitution of the Respondent will not assist anybody.
The court does not give orders in futility. For these reasons, I must which I hereby do dismiss the application dated 25. 2.2010 with orders that each party bears its own costs.
W. KARANJA
JUDGE
Delivered, signed and dated at Embu this 6th day of July 2010.
In presence of:- Mr. Kariithi for Appellants in the Appeal who are the Respondents in the application and Applicant in person.