[2007] KEHC 537 (KLR)
The court held that the application was fatally defective for two main reasons: first, it was premised on the wrong provisions of law, as the correct procedure for revival and substitution in abated appeals is set out in Order XXIII Rules 8(2) and 12 of the Civil Procedure Rules; second, the applicant failed to seek...
Source-derived case information.
- Citation
- [2007] KEHC 537 (KLR)
- Parties
- Appellant: Wekesa Sinino (deceased, substituted by Belina Waliambila Wekesa); Respondent: Marko Kusienya Sinino
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 145 of 2003
- Procedural Posture
- Civil Appeal / Ruling on Application to Revive Abated Appeal and Set Aside Dismissal Orders
- Outcome
- application struck out
- Legal Topics
- Abatement of Appeal, Substitution of Parties, Revival of Appeal, Procedural Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wekesa Sinino (deceased, substituted by Belina Waliambila Wekesa)
Appellant
Marko Kusienya Sinino
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Revive Abated Appeal and Set Aside Dismissal Orders
Legal Issues
- 1 Whether the application to revive the abated appeal and set aside dismissal orders was properly before the court.
- 2 Whether the applicant's failure to seek substitution as a party was fatal to the application.
- 3 Whether invoking the wrong provisions of law invalidated the application.
Ratio Decidendi
The court held that the application was fatally defective for two main reasons: first, it was premised on the wrong provisions of law, as the correct procedure for revival and substitution in abated appeals is set out in Order XXIII Rules 8(2) and 12 of the Civil Procedure Rules; second, the applicant failed to seek substitution as a party, which is a necessary step before revival of an abated appeal. Without substitution, there would be no party to prosecute the revived appeal, rendering the application pointless. The court further noted that interlocutory orders could not be granted in a matter where the appeal had not been revived and the applicant had not been properly joined....
Court Disposition
application struck out
Orders
- The application dated 15/12/2006 is struck out.
- No order as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT KAKAMEGA
Civil Appeal 145 OF 2003
WEKESA SININO.............................................................APPELLANT
V E R S U S
MARKO KUSIENYA SININO......................................RESPONDENT
R U L I N G
The Application dated 15/12/2006 in respect of this ruling was made on 19th December, 2006 by Belina Waliambila Wekesa,the administratrix of the estate of the late Wekesa Sinino Alfunzi who before he died on 2-6-2005 had filed the appeal herein on 17-11-2003. On 29. 11. 2006, this court struck out an application for substitution made in the appeal on 26. 9.2006 by the applicant after the appeal had abated.
In her application dated 15. 12. 2006 premised on Order XLIV Rules 1, 2 & 3 and Order XXIII Rule 2 of the Civil Procedure Rules and sections 63 (e) of the Civil Procedure Act, the Applicant seeks the following orders:-
1. That pending the hearing and determination of this application the status quo pertaining the land parcel No. Kakamaeg/Lugari/101 and all sub-divisions derived there from be maintained.
2. That the court be pleased to set aside and/or vary the orders made on 29/11/2006 dismissing the application be reinstated for hearing.
3. That the court be pleased to order the revival of this appeal which abated on 2/6/2006.
4. That costs of this application be provided for.
Clearly the application is premised on the wrong provisions of the law. The correct provision should have been Rules 8 (2) and 12 of Order XXIII of the Civil procedure Rules. The appeal abated a year after the death on 2. 6.2005 of the Appellant. That period elapsed on 2. 6.2006 or thereabouts. When the application to substitute was made on 29. 6.2006, it was made in vacuuo as the appeal was not in being and that is why the application was struck out.
The present application seeks in prayer 2 to set aside or vary the dismissal orders made on 29. 11. 2006 and in prayer 3 it seeks to revive the appeal. If the orders made on 29. 11. 2006 are set aside, the effect would be to revive, not the appeal, but the application seeking substitution. Ideally, if the dismissal orders were set aside and the application revived, it would need to be amended to incorporate in it a prayer for revival of the appeal for the simple reason that there cannot be substitution before revival of the appeal.
The present application seeks revival of the dismissed application and of the appeal that has abated. It does not seek substitution after revival of the appeal in prayer (3). Without substitution, there will be no party. The Applicant has to seek setting aside of the orders dismissing the application and revival of the appeal and substitution in that order under Order XXIII Rule 8 (2) of the Civil Procedure Rules.
The Applicant’s omission to seek to be made a party through substitution and the invocation of the wrong provisions of the law are fatal flaws. And it is not possible to grant interlocutory orders sought in prayer 1 in a matter where the appeal has not been brought back to life and the applicant has not sought to be joined as the person now standing in the shoes of the deceased. An application that is struck out as incompetent does not give rise to the doctrine of res judicata as the matter has not been heard and determined on merit.
For these reasons, in its present form, the application must fail. It is struck out in part because it is premised on the wrong provisions of the law, and in part because the legal representative of the deceased has failed to seek substitution without which it would be pointless to revive the appeal. There will be no order as to costs.
Dated at Kakamega this 11th day of October, 2007.
G. B. M. KARIUKI
J U D G E