[2019] KEELC 3709 (KLR)
The court found that the appellant had died on 30th May 2015 and no substitution had been made since her death. Although no death certificate was produced, the averment of death was not rebutted by the appellant or her advocates, who did not oppose the application. The court concluded that the appeal had abated by...
Source-derived case information.
- Citation
- [2019] KEELC 3709 (KLR)
- Parties
- Appellant: Susan Khisa; Respondent: Peter Wanyama Kerre; Respondent: Beatrice Nakhumicha Lumunyasi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 02 of 2019
- Procedural Posture
- Civil Appeal / Ruling on Application to Declare Appeal Abated Due to Appellant's Death
- Outcome
- Application allowed; appeal declared abated; no order as to costs.
- Legal Topics
- Abatement of Appeal, Substitution of Parties, Costs Discretion, Death of Litigant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Susan Khisa
Appellant
Peter Wanyama Kerre
Respondent
Beatrice Nakhumicha Lumunyasi
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Declare Appeal Abated Due to Appellant's Death
Legal Issues
- 1 Whether the appeal should be declared abated due to the death of the appellant and lack of substitution.
- 2 Whether costs should be awarded against the estate of the deceased appellant.
Ratio Decidendi
The court found that the appellant had died on 30th May 2015 and no substitution had been made since her death. Although no death certificate was produced, the averment of death was not rebutted by the appellant or her advocates, who did not oppose the application. The court concluded that the appeal had abated by operation of law under Order 24 of the Civil Procedure Rules. On the issue of costs, the court exercised its discretion and found no reason to burden the estate of the deceased appellant with costs, given the circumstances.
Court Disposition
Application allowed; appeal declared abated; no order as to costs.
Orders
- The appeal is declared abated.
- No order as to costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT BUNGOMA
CIVIL APPEAL NO. 02 OF 2019
SUSAN KHISA...................................................................APPELLANT
VERSUS
PETER WANYAMA KERRE ............................... 1ST RESPONDENT
BEATRICE NAKHUMICHA LUMUNYASI ......2ND RESPONDENT
R U L I N G
This is in respect to the Respondents’ Notice of Motion dated 30th April 2018 seeking the following orders:-
1. That this Court orders that the appeal herein has abated.
2. That consequent to the grant of prayer (1) above, the costs of this application and the appeal be recovered from the Estate of the deceased Appellant.
The application is premised on the grounds set out therein and also supported by the affidavit of PETER WANYAMA KERRE the 1st Respondent herein. The gravamen of the application is that the Appellant filed this appeal on 12th May 2014 having been dissatisfied by the Judgment of the Honourable Magistrate delivered on 7th May 2014 in BUNGOMA CMCC NO. 423 OF 2002. That the Appellant died on 30th May 2015 and has not been substituted to-date and therefore this appeal has abated.
There is no response filed to the application although M/S OMUNDI BWONCHIRI ADVOCATES for the Appellant were served. The application is therefore not opposed.
While no evidence has been placed before me in the nature of a Certificate of Death to confirm the averment by the Respondent that the Appellant passed away on 30th May 2015 one year after this appeal had been filed, that averment is not rebutted. The Court will therefore conclude that indeed the Appellant passed away on 30th may 2015. This appeal has therefore abated.
On the issue of costs, that is a discretionary matter. I see no reason to burden the Appellant’s Estate with costs.
Ultimately therefore, I grant the Orders sought in the Respondents Notice of Motion dated 30th April 2018 but with no orders as to costs.
Boaz N. Olao.
JUDGE
25th April 2019.
Ruling dated, delivered and signed in Open Court this 25th day of April 2019 at Bungoma.
Mr. Murunga for Respondent - present
Appellant - absent
Boaz N. Olao.
JUDGE
25th April 2019.