Kabocha & 2 others v Kamau & another [1987] KECA 60 (KLR)
The bottom line
#A deceased respondent doesn't kill your Kenyan appeal, but you still need a certificate of delay and a properly appointed legal representative before the court will extend time.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the court should extend time to file an appeal out of the 60-day period prescribed by rule 81 of the Court of Appeal Rules, and whether a certificate of delay is required to exclude the time taken to prepare proceedings
- 2.Whether the application is incompetent because it seeks an order against a dead person, the 1st respondent having died before the appeal was instituted
- 3.Who is the proper legal representative of the deceased 1st respondent on whom the application should be served
Key legal issues
#Effect of a respondent's death on an appeal not yet instituted
An appeal initiated by a notice of appeal lodged within rule 74(1) does not become incompetent by the death of a respondent before formal institution under rule 81; rule 83(2) requires the deceased's legal representative to be made a party in place of the deceased.
The court read rules 74(1), 77 and 83(2) together and found a clear intent in the rules that an appeal by or against a party should not be negated by the fortuitous death of a party. A notice of appeal initiates an appeal; if the respondent dies before institution, the legal representative is to be substituted. No blame attaches to the applicant for the death or for the contest between the deceased's widows over representation.
Competency of the application where no legal representative of the deceased is ascertained
The application should not be dismissed as incompetent merely because there is no known legal representative of the deceased on whom it can be served; the proper course is to require service on the living respondent and on the legal representative once appointed.
Rule 83(2) keeps such an appeal alive. A person cannot hold themselves out as a legal representative without a grant of probate or letters of administration, and here the question of representation was subject of a suit between the deceased's two widows. Since no blame attaches to the applicant, dismissal on that ground alone would be unjust. The case is distinguishable from Dawson v Dove because the 1st respondent was alive when the notice of appeal was lodged.
Certificate of delay and extension of time under rule 81
Where the applicant applied for proceedings within time but they were supplied long after the 60-day period, the applicant may rely on the proviso to rule 81 to exclude the preparation time, but only if certified by the Registrar in a certificate of delay.
The applicant applied for proceedings on May 27 and June 9, 1986, but they were only supplied on February 27, 1987. Without a certificate of delay the court could not be satisfied that the whole period was required for preparation of the proceedings, though the eleven-day delay in bringing the extension application was short and weighed in the applicant's favour.
Legal principles established
#- Rule 4 of the Court of Appeal Rules confers an unlimited discretion on the court to extend time, subject only to the requirement of justice.
- The death of a respondent does not render an appeal incompetent; where the respondent was dead at the time the appeal was instituted, the court shall cause the deceased's legal representative to be made a party in place of the deceased.
- Intermediate procedural steps taken to perfect or regularize an intended appeal cannot be invalidated merely because no legal representative of a deceased respondent is available for service of notices.
Court orders
#- 1.The application for extension of time is stood down sine die
- 2.The application will receive further consideration if the applicant produces a certificate of delay duly certified by the Registrar
- 3.Further consideration conditional on the applicant satisfying the court that a legal representative of the 1st respondent has been duly appointed and that the application was served on her or her duly authorized agent
- 4.Costs of the application to be costs in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (unlimited discretion to enlarge time on any grounds the court deems just)
Relief refused
#Immediate extension of time to file the appeal
No certificate of delay was attached and there is no known or ascertained legal representative of the deceased 1st respondent on whom the application can properly be served
Costs
Costs of the application to be costs in the cause.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Under rule 4 of the Court of Appeal Rules, this court is empowered to enlarge the time on any grounds it deems just.
It seems to me that the rules evinced a clear intent that an appeal by or against a party should not be negated by the fortuitous circumstances of the death of either party.
the clear object of rule 83 is to keep alive an appeal like the present
The result is, that I propose to stand this application down sine die and will give it further consideration if the applicant produced to me, a certificate of delay duly certified by the Registrar and also satisfied me that a legal representative of the 1st respondent has been duly appointed
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kabocha & 2 others v Kamau & another [1987] KECA 60 (KLR)", Case Analysis (1987). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1987/60/eng@1987-12-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.