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Court of AppealStruck OutCivil Appeal No. 135 of 2000· [2004] KECA 62 (KLR)

Martin v Ram [2004] KECA 62 (KLR)

Court of Appeal of Kenya
23 March 2004
Philip Kiptoo TunoiP. K. TunoiEOE. O. O'KubasuJOJ. W. Onyango Otieno
182 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an appeal filed in a dead man's name, confirming only his legal representative can appeal on his behalf.

What this practically means

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Executive summary

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This brief Court of Appeal order disposes of Civil Appeal No. 135 of 2000 (Joe Louis Martin v Shyam Singh Bansal Ram) on a threshold point of competence rather than on the merits. The appeal lay from a ruling and order of the High Court of Kenya at Kisumu (Wambilyangah, J) dated 22 March 2000 in H.C.C.S. No. 15 of 1991 (O.S.). It came before Tunoi and O'Kubasu, JJ.A., and Onyango Otieno, Ag. J.A., sitting at Kisumu. The court recorded that both counsel agreed the appeal had been instituted in the name of Joe Louis Martin, who was already dead at the time of institution. Applying Rule 83(1) — restated by the court as providing that an appeal shall not be instituted in the name of a dead person but may be instituted in the name of his legal representative — the court held the appeal incompetent, struck it out, and awarded the respondent the costs of the appeal. The order is dated 23 March 2004 and bears the signatures of all three Judges of Appeal; it is a single order of the court with no separate or dissenting opinion. No case law is cited and the merits of the underlying suit, and the ruling below, are not addressed; the decision of the High Court was left undisturbed. The binding significance of the judgment lies in its strict application of the rule that an appeal instituted in the name of a deceased person, rather than of his legal representative, is incompetent and must be struck out, with costs following that outcome.

Key legal issues

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01

Competence of an appeal instituted in the name of a deceased person

Holding

An appeal instituted in the name of a person who was dead at the time of institution offends Rule 83(1), is incompetent, and must be struck out; the legal representative is the proper party to institute such an appeal.

Reasoning

The court applied Rule 83(1), which it restated as providing that an appeal shall not be instituted in the name of a dead person but may be instituted in the name of his legal representative. Both counsel agreed that Joe Louis Martin was already dead when the appeal was filed in his name. Institution in the name of the deceased therefore offended the rule, leaving the appeal incompetent. The court gave no consideration to the merits of the underlying dispute or to the ruling of Wambilyangah, J; the only available course was to strike out the appeal, with costs to the respondent.

p. 2

Legal principles established

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  • An appeal shall not be instituted in the name of a person who is dead; it may only be instituted in the name of his legal representative.
  • An appeal instituted in the name of a dead person is incompetent and liable to be struck out, with costs to the respondent.

Court orders

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  1. 1.The appeal is struck out as incompetent.
  2. 2.The respondent will have the costs of the appeal.

Authorities

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Legislation

  • Not named in the judgment (cited simply as 'Rule 83(1)')Rule 83(1)
On appeal from
High Court of Kenya at Kisumu
H.C.C.S. No. 15 of 1991 (O.S.)
Jurisdiction invoked
Not stated in the judgment. The decision turned on 'Rule 83(1)' (the parent rules are not identified in the judgment), which prohibits instituting an appeal in the name of a dead person; the provision conferring jurisdiction on the Court of Appeal over this appeal is not mentioned.

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, "Martin v Ram [2004] KECA 62 (KLR)", Case Analysis (2004). Civil Appeal No. 135 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2004/62/eng@2004-03-23

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