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Court of AppealStruck OutKisumu Civil Appeal No 191 of 2022 (application by Notice of Motion dated 13th May, 2024)

Obat v Obat & 4 others (Civil Application E191 of 2022) [2024] KECA 1021 (KLR)

Court of Appeal of Kenya
16 August 2024
HOHannah Okwengu
1,276 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal struck out a family's attempt to revive a dead relative's appeal because the paperwork was filed in the wrong name and bundled unrelated requests together.

What this practically means

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Executive summary

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This is a single-Judge ruling of the Court of Appeal at Kisumu delivered by Okwengu, JA on 16th August 2024. The applicant, Sylvester Ochieng Onyango, one of three joint administrators of the estate of Pius Onyango Obat (deceased), sought leave to file an application to revive the appeal in Kisumu Civil Appeal No 191 of 2022 out of time, substitution of the administrators as legal representatives of the deceased, a stay of the respondents' notice of motion dated 19th April 2024 seeking striking out of the appeal, and leave to amend the memorandum and record of appeal. The underlying dispute concerns Uholo/Magoya/221, part of which was acquired by the government, with Kshs 7,550,000/- compensation held in a joint interest-earning account and the subject of interpleader proceedings. The respondents opposed, contending that Pius died before filing any appeal and that the application was brought with inordinate delay. The Court held the motion defective because it was filed in the name of the deceased rather than the person claiming to be his legal representative, contrary to the sequence required by Rule 102(3), and incompetent because it was an omnibus application combining a single-Judge substitution application under Rule 102(4) with stay and amendment matters outside a single Judge's jurisdiction. The Court declined to consider the merits of revival or substitution and struck out the motion with costs to the respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the motion dated 13th May 2024 is properly before the Court
  2. 2.Whether the legal representatives of the deceased appellant have shown sufficient cause for reviving the appeal almost three years after his death
  3. 3.Whether Pius had filed an appeal

Key legal issues

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01

Proper form and forum of an application under Rule 102 of the Court of Appeal Rules

Holding

The motion was defective both as to the named applicant and as to the forum, and was struck out without going into the merits

Reasoning

Although Sylvester claimed to be the applicant, the motion was filed in the name of the deceased, Pius. Under Rule 102(3) the application for revival must be brought first by the person claiming to be the legal representative, with substitution to follow once the appeal is revived. Further, the motion was omnibus: it combined a single-Judge application under Rule 102(4) with stay and amendment matters reserved for the full Court, rendering it incompetent.

p. 3
02

Effect of Rule 102 on appeals where a party dies

Holding

An appeal abates if no substitution application is made within twelve months of death; an abated appeal may be revived on proof of sufficient cause

Reasoning

The Court read Rule 102 as providing that an appeal does not automatically abate on death, but abates where no application is made within twelve months for the legal representative to be joined. A person claiming to be the legal representative or an interested party may then apply for revival, and the Court shall revive the appeal if sufficient cause for the failure to continue is proved.

p. 3

Legal principles established

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  • A motion for revival of an abated appeal under Rule 102(3) must first be brought by the person claiming to be the legal representative, seeking revival, and only thereafter substitution of the legal representatives in place of the deceased
  • An omnibus application that combines a single-Judge application under Rule 102(4) with matters outside a single Judge's jurisdiction, such as stay of proceedings and amendment of pleadings, is incompetent

Court orders

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  1. 1.The notice of motion dated 13th May 2024 is struck out
  2. 2.Costs awarded to the respondents as against the applicants

The bench

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One judgment of the whole court — no separate or dissenting opinions.

HO
majority

Wrote the judgment

On appeal from
Environment and Land Court, Siaya
Siaya ELC Appeal No 43 of 2021
Jurisdiction invoked
Articles 50 and 159 of the Constitution; Sections 3A and 3B of the Appellate Jurisdiction Act; Rules 44, 46 and 102 of the Court of Appeal Rules; Order 51 Rules 1 and 15 of the Civil Procedure Rules

Relief refused

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Leave to file an application to revive the appeal out of time and to revive the appeal upon substitution of the legal representatives

The motion was filed in the name of the deceased and was an omnibus application mixing single-Judge and full-Court matters, rendering it incompetent

p. 3

Stay of the hearing of the respondents' notice of motion dated 19th April 2024

The application was incompetent and struck out

p. 3

Leave to amend the memorandum of appeal and record of appeal and set them down for directions

The application was incompetent and struck out

p. 3

Costs

Costs awarded to the respondents as against the applicants

Quotable passages

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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 application is therefore incompetent. That being the position I do not find it necessary to go into the merit of the application for revival of the appeal or substitution of Pius.
p. 3incompetence of omnibus application
The notice of motion dated 13th May 2024, is accordingly struck out, and costs awarded to the respondents as against the applicants.
p. 3final orders

Issues in the judgment

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minor

The motion is described as filed in the name of the deceased, Pius Onyango Obat, while the deponent claims to be the applicant, Sylvester; the Court itself flagged this defect

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Obat v Obat & 4 others (Civil Application E191 of 2022) [2024] KECA 1021 (KLR)", Case Analysis (2024). Kisumu Civil Appeal No 191 of 2022 (application by Notice of Motion dated 13th May, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1021/eng@2024-08-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.