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Court of AppealOtherCivil Appeal (Appli) 189 of 2003· [2006] KECA 322 (KLR)
David Tom Maari alias Tom David Maari t/a Maari and Company Advocates v Njuguna Muthui & The Standard Limited
Court of Appeal of Kenya
2 March 2006
209 words in judgment
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·~1 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#This short Court of Appeal order at Nakuru disposed of Civil Appeal (Appli) 189 of 2003, an appeal by David Tom Maari, an advocate, against the judgment and decree of the High Court at Nakuru (Jessie Lessit, J) dated 10 June 2003 in H.C.C.C. No. 242 of 2002, in which Njuguna Muthui and The Standard Limited were respondents. When the matter came up, counsel for the appellant, Mr. Konosi, informed the court that his client had passed away sometime in 2004 and that no application for substitution had been made under rule 96 of the Court of Appeal Rules. On that basis, the court held that the appeal and the pending motion seeking the striking out of the appeal had abated. Because a cross-appeal was also on record, the court held that it too abated. The court acted pursuant to rule 96(2) of the Rules and made no orders as to costs. The order was made at Nakuru on 2 March 2006 by Omolo, O'Kubasu and Githinji, JJA. The judgment establishes the practical consequence of a sole party's death without substitution under rule 96: both the appeal and any cross-appeal abate. No substantive issues from the underlying defamation-related dispute were determined, and the High Court decision was neither affirmed nor reversed.
Key legal issues
#01
Abatement of appeal on death of appellant without substitution
Holding
The appeal, the striking-out motion and the cross-appeal abated because the appellant died in 2004 and no substitution application was made under rule 96.
Reasoning
Counsel for the appellant informed the court that his client died in 2004 and that no application for substitution was made under rule 96 of the Court's Rules. The court therefore declared the appeal, the motion and the cross-appeal abated under rule 96(2), making no order as to costs.
p. 1
Legal principles established
#- Where a sole appellant dies and no substitution is made under rule 96 of the Court of Appeal Rules, the appeal, any motion relating to it, and a cross-appeal all abate.
Court orders
#- 1.The appeal and the motion seeking striking out of the appeal abate pursuant to rule 96(2) of the Court's Rules
- 2.The cross-appeal also abates
- 3.No orders as to costs
- On appeal from
- High Court of Kenya at Nakuru
- Nakuru H.C.C.C. No. 242 of 2002
- Jurisdiction invoked
- Court of Appeal Rules, rule 96(2) (abatement of appeal on death of a party)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Tom Maari alias Tom David Maari t/a Maari and Company Advocates v Njuguna Muthui & The Standard Limited", Case Analysis (2006). Civil Appeal (Appli) 189 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/322/eng@2006-03-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.