Francis Sirma Kios v Kibore Sigilai [2018] KECA 547 (KLR)
The bottom line
#The Court of Appeal refused to revive a dead appeal because the appellant waited a year without explaining the delay, so the High Court judgment stands.
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 abated Civil Appeal No. 75 of 2013 should be revived under Rule 99(3) of the Court of Appeal Rules
- 2.Whether the legal representatives of the deceased respondent should be substituted
- 3.Whether an inordinate and unexplained delay disentitles the applicant to the discretionary relief of revival
- 4.Whether status quo should be maintained pending determination of the appeal
Key legal issues
#Revival of an appeal abated under Rule 99(2) of the Court of Appeal Rules
The Court declined to exercise its discretion to revive the abated appeal because the applicant was guilty of inordinate and unexplained delay and the decree had been executed
The applicant knew of the respondent's death in good time and was handed a copy of the grant of letters of administration in open court on 31st January 2017, yet filed the revival motion only on 30th January 2018. The applicant offered no reasonable explanation for that one-year delay. The Court also noted that the High Court decree had long been executed and possession taken, so reviving the appeal would serve no practical purpose. Discretion was accordingly refused.
Legal principles established
#- An applicant for revival of an abated appeal must explain any inordinate delay in bringing the application, particularly where the grant of letters of administration was availed to him and the decree has been executed
Court orders
#- 1.The Notice of Motion dated 30th January 2018 seeking revival of the abated appeal, substitution, status quo and leave to file a supplementary affidavit is dismissed
- 2.Costs of the application awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nakuru
- Jurisdiction invoked
- Rules 4, 44, 47, 88, 99(1) and 99(3) of the Court of Appeal Rules (inherent power and revival of abated appeals)
Relief refused
#Revival of the abated Civil Appeal No. 75 of 2013
The applicant knew in good time of the death of the respondent, received the grant of letters of administration on 31st January 2017, and gave no explanation for the one-year delay in filing the motion; the decree had already been executed
Substitution of the deceased respondent's legal representatives and maintenance of status quo
These were ancillary to the revival of the abated appeal, which was refused in the exercise of the Court's discretion
Costs
There is no merit in the application which we dismiss with costs to the respondent.
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.
The applicant has not given a reasonable explanation for that delay, which we find to be inordinate.
There is no merit in the application which we dismiss with costs to the respondent.
we are not persuaded that we should exercise a discretion and revive the abated appeal
Issues in the judgment
#The judgment states the High Court judgment was executed way back in 2010 in one passage and that the decree was executed in 2012 in another, an internal inconsistency in dates
The ruling refers to an earlier ruling of 10th October 2013 quoting the decree as having been executed, with the year of execution stated inconsistently elsewhere as 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis Sirma Kios v Kibore Sigilai [2018] KECA 547 (KLR)", Case Analysis (2018). Civil Appeal (Application) No. 75 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/547/eng@2018-05-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.