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Court of AppealDismissedCivil Application NAI 218 of 2003· [2003] KECA 205 (KLR)

Vyatu Limited & another v Public Trustee, Nyanza Province

Court of Appeal
28 November 2003
EGE.M. Githinji
965 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed it cannot revive an appeal that has lapsed because a deceased party was never replaced in time.

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 by Githinji JA on a notice of motion by Vyatu Limited, the appellants in Civil Appeal No 80 of 2000 against the Public Trustee, Nyanza Province. The underlying High Court suit (HCCC No 320 of 1997) had awarded the respondent Shs 721,500 with costs for road traffic accident injuries. The respondent died on 26 February 2002 before the appeal was heard, and the appeal abated under rule 96(2) of the Court of Appeal Rules because no substitution application was made within twelve months. The applicants sought extension of time to substitute the Public Trustee as legal representative and revival of the abated appeal, relying on rules 1(2) and 4 of the Court of Appeal Rules, sections 3A and 95 of the Civil Procedure Act and Order XLIX rule 5. The court held that the Court of Appeal Rules contain no provision authorising a party to apply for revival of an abated appeal and confer no jurisdiction on the court to revive one; unlike suits under Order XXIII rule 2 of the Civil Procedure Rules, no corresponding right or power exists for appeals. Extending time for substitution would amount to amending rule 96(2). Further, the Public Trustee had not been granted letters of administration or a limited grant pendente lite under paragraph 10 of the Fifth Schedule to the Law of Succession Act; the High Court's order appointing him interim administrator was limited to receiving the decretal sum and paying costs, and did not make him a legal representative. The application was found incompetent and dismissed with costs to the Public Trustee. The ruling binds subordinate courts and the High Court on the absence of jurisdiction to revive abated appeals.

Key legal issues

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01

Jurisdiction to revive an abated appeal

Holding

The Court of Appeal has no power to revive an appeal abated under rule 96(2); extending time for substitution would effectively amend the rule.

Reasoning

Rule 96(1) permits substitution within twelve months of death; rule 96(2) provides that the appeal abates if no application is made in time. Unlike Order XXIII rule 2 of the Civil Procedure Rules for suits, no corresponding right or power exists in the Court of Appeal Rules. The court cannot by extension of time do what the rules do not permit.

p. 2
02

Whether the Public Trustee was a legal representative of the deceased

Holding

The Public Trustee was not a legal representative because no letters of administration or limited grant pendente lite had been granted; the interim administrator order was limited to receiving the decretal sum and paying costs.

Reasoning

Paragraph 10 of the Fifth Schedule to the Law of Succession Act requires a grant or limited grant pendente lite for the Public Trustee to act as legal representative. The High Court's order of 12 June 2003 appointed the Public Trustee only as interim administrator to receive the decretal sum and pay advocate-client costs, which does not confer legal representative status.

p. 2

Legal principles established

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  • The Court of Appeal Rules contain no provision authorising a party to apply for revival of an abated appeal, and the Court has no jurisdiction to revive an abated appeal.
  • An appointment of an interim administrator limited to receiving a decretal sum does not constitute appointment of a legal representative of the deceased.

Court orders

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  1. 1.The application is dismissed with costs to the Public Trustee
On appeal from
High Court
Civil Suit No 320 of 1997
Jurisdiction invoked
Rule 1(2) and rule 4 of the Court of Appeal Rules; section 3A and section 95 of the Civil Procedure Act; Order XLIX rule 5 of the Civil Procedure Rules

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, "Vyatu Limited & another v Public Trustee, Nyanza Province", Case Analysis (2003). Civil Application NAI 218 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2003/205/eng@2003-11-28

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