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Court of AppealOtherNot stated in the judgment· [2024] KECA 1578 (KLR)

Murumba v Natili (Civil Application E089 of 2024) [2024] KECA 1578 (KLR)

Court of Appeal of Kenya
8 November 2024
HOHannah Okwengu
276 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that an appeal application automatically dies when the opposing party dies and no one is substituted to take their place.

What this practically means

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Executive summary

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Charles Kaskon Murumba moved the Court of Appeal at Kisumu by notice of motion seeking enlargement of time to file and serve the notice of appeal and the appeal from the judgment and orders of the High Court (P.J. Otieno, J) delivered on 26th May 2023. The applicant gave no reason for the delay in filing the appeal and filed no written submissions despite the Court's directions communicated by email on 26th September 2024. The respondent's advocate, Michael Muhuyi Kiveu, filed an unopposed replying affidavit deposing that the respondent died on 30th June 2023, that he had no instructions on how to proceed, and that his attempts to have a representative substituted had not been fruitful. The Court, considering the unopposed affidavit, held that since the respondent had died and no application had been made to substitute a representative, the notice of motion was deemed to have abated under Rule 53(3) of the Court of Appeal Rules. The intended appeal therefore cannot proceed by way of this application; the applicant would need to pursue substitution or other appropriate remedies. No costs order is recorded, and no authorities were cited in this short ruling delivered at Kisumu on 8th November 2024.

Key legal issues

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01

Effect of the death of a respondent without substitution on an application for extension of time

Holding

The application abates under Rule 53(3) of the Court of Appeal Rules where the respondent has died and no substitution has been effected.

Reasoning

The respondent died on 30th June 2023. The respondent's advocate deposed, in an unopposed replying affidavit, that he had no instructions on how to proceed as the respondent had not been substituted and attempts to have a representative substituted had not been fruitful. No application for substitution having been made, the motion could not be sustained and was deemed to have abated.

p. 2

Legal principles established

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  • Where the respondent in a pending appeal application dies and no application is made to substitute a representative, the application abates under Rule 53(3) of the Court of Appeal Rules.

Court orders

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  1. 1.The notice of motion is deemed to have abated under Rule 53(3) of the Court of Appeal Rules
On appeal from
High Court
Jurisdiction invoked
Rule 53(3) of the Court of Appeal Rules (abatement of the application)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Murumba v Natili (Civil Application E089 of 2024) [2024] KECA 1578 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1578/eng@2024-11-08

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