[2006] KEHC 595 (KLR)
The court held that the application for substitution was made after the appeal had abated by operation of law, as more than one year had elapsed since the death of the appellant without any application for substitution. Under Order XXIII Rule 3(2) and Rule 10 of the Civil Procedure Rules, the appeal ceased to exist...
Source-derived case information.
- Citation
- [2006] KEHC 595 (KLR)
- Parties
- Appellant: Wekesa Sinino (deceased); Respondent: Marko Kusienya Sinino; Applicant: Belida Waliambila Wekesa
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Case 145 of 2003
- Procedural Posture
- Civil Appeal / Ruling on Application for Substitution After Abatement of Appeal
- Outcome
- Application for substitution struck out as incompetent; costs awarded to the respondent.
- Legal Topics
- Abatement of Suit, Substitution of Parties, Appeal Procedure, Adoption of Elders Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wekesa Sinino (deceased)
Appellant
Marko Kusienya Sinino
Respondent
Belida Waliambila Wekesa
Applicant
Procedural Posture
Civil Appeal / Ruling on Application for Substitution After Abatement of Appeal
Legal Issues
- 1 Whether the application for substitution of the deceased appellant was competent after the appeal had abated.
- 2 Whether the appeal had abated by operation of law under Order XXIII of the Civil Procedure Rules.
- 3 Whether the applicant should have revived the appeal before seeking substitution.
Ratio Decidendi
The court held that the application for substitution was made after the appeal had abated by operation of law, as more than one year had elapsed since the death of the appellant without any application for substitution. Under Order XXIII Rule 3(2) and Rule 10 of the Civil Procedure Rules, the appeal ceased to exist upon abatement, and there was no appeal in being at the time the application for substitution was made. The proper procedure would have been to first apply for revival of the abated appeal under Rule 8(2) before seeking substitution. As such, the application for substitution was incompetent and was struck out with costs to the respondent.
Court Disposition
Application for substitution struck out as incompetent; costs awarded to the respondent.
Orders
- The application for substitution is struck out.
- Costs of the application are awarded to the respondent.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
Civil Case 145 of 2003
WEKESA SININO…………………………………PLAINTIFF
V E R S U S
MARKO KUSIENYA SININO…………....……DEFENDANT
R U L I N G
On 17-11-2003, Wekesa Sinino, (now deceased) filed in this court a memorandum of appeal dated 12. 11. 2003 in which he described himself as “plaintiff” and Marko Kusienya Sinino, (the Respondent) as Defendant. The said appeal was against the Ruling said to have been delivered on 22/10/2003 by the learned Senior Resident Magistrate, K. Mogambi Esq., in CMC Misc. Civil Application No.106 of 2000 in which the said trial magistrate dismissed an application dated 21/3/03 seeking to restore a dismissed application dated 26-5-2000 which had sought an order for adoption of an award of elders as a judgment of the court. The application dated 26. 5.00 was dismissed for want of prosecution and the formal order extracted was issued on 18. 12. 2002. The effect of the dismissal of the application dated 26. 5.00 was that the award of the elders was not endorsed as a judgment of the court. That is why in ground 2 of the said memorandum of appeal the applicant submitted that-
“the learned trial magistrate grossly erred by failing to hold that in any event an application for adoption under the Land Disputes Tribunals Act No.18 of 1990 could not be dismissed for want of prosecution.”
The application dated 12. 7.06 by Belida Waliambila Wekesa, the widow of the deceased, sought to have the deceased’s name substituted in the appeal herein with her own name as the administratrix of the estate of the deceased. Mr. Kiveu, learned counsel for the applicant, submitted that the appeal could not proceed before substitution. He contended that the appeal had not abated under Order XXIII. The applicant’s affidavit in support of the application showed that the deceased died on 2-6-2005.
Mrs. Lusinde, learned counsel for the Respondent who had filed grounds of opposition contended that the application had no merit. She told the court that the application was improper as the appeal had abated because the application for substitution was made on 26. 9.06 after one year of the death of the deceased.
I have duly considered the application and the arguments proffered by both counsel. Rule 3 (2) of Order XXIII of the Civil Procedure Rules stipulates that where within one year no application is made for the legal representation of the deceased plaintiff to be made a party, the suit shall abate. Rule 10 of Order XXIII defines ”Plaintiff” as including ”an appellant” and ”suit” as including an appeal. Clearly the application for substitution, made as it was on 26. 9.2006, came after the abatement of the appeal. The effect of the abatement was that the appeal ceased to exist. As at the time when the application for substitution was made on 26. 9.06, there was no appeal in being. The application was therefore made in vacuo. It was incompetent. For this reason, I hereby strike it out. I award the costs to the Respondent. Perhaps the applicant should have utilized the provisions of Rule 8(2) of Order XXIII to revive the appeal first before seeking substitution.
Delivered, dated and signed at Kakamega this 29th .day of November, 2006
G. B. M. KARIUKI
J U D G E