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Court of AppealDismissedCivil Application No. 134 of 2004

CHANDULAL BHIMJI RACH v DR. PAUL TITUS OBWAKA [2007] KECA 306 (KLR)

Court of Appeal of Kenya
18 May 2007
WDW. S. Deverell
2,218 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to revive an appeal because the opposing party had died and the one-year window to substitute his estate had already passed.

What this practically means

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Executive summary

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This is a ruling delivered on 18 May 2007 by W. S. Deverell, JA, sitting as a single Judge of the Court of Appeal at Nairobi on two applications registered under Civil Application No. 134 of 2004. The first, dated 14 June 2004, was brought by Chandulal Bhimji Rach seeking extension of time to file and serve a record of appeal against the decision of the High Court (Aluoch, J) dated 31 May 2000 in HCCC No. 2389 of 1995, by which judgment was entered for Dr. Paul Titus Obwaka with interest and costs. The second, dated 28 September 2005 and filed by Kamere & Co for the respondent's estate, sought substitution of the deceased respondent's legal representatives under rule 83 of the Court of Appeal Rules; Dr. Obwaka had died on 6 March 2004. The Judge held that the High Court suit abated under Order XXIII rule 3(2) of the Civil Procedure Code, no substitution application having been made within one year of the plaintiff's death, so the judgment in the deceased's favour can no longer be enforced. Turning to the Court of Appeal Rules, he held that rule 96 presupposes an instituted appeal: a lodged notice of appeal and a pending extension application are not an appeal capable of abating. But the 12-month period in rule 96(2) runs from the date of death, so any appeal later instituted would abate immediately, no rule 96(1) application having been made within 12 months of the death. Because the Court will do nothing in vain, the extension was refused, although the delays were held not inordinate. The substitution application was allowed as prayed; the extension application was dismissed with costs, and the applicant was ordered to pay the respondent's costs of the substitution application.

Questions the Court framed

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

  1. 1.Whether the High Court suit, HCCC No. 2389 of 1995, abated on the death of the plaintiff under Order XXIII rule 3(2) of the Civil Procedure Code, no substitution application having been made within one year of death.
  2. 2.Whether rule 96 of the Court of Appeal Rules applies to abate an appeal that has not yet been instituted, where only a notice of appeal has been lodged and an application for extension of time to file the record is pending.
  3. 3.Whether an appeal instituted after the death of a respondent pursuant to an extension of time would abate where no application was made under rule 96(1) within 12 months of the death.
  4. 4.Whether the applicant's delays justified refusal of the extension of time to file and serve the record of appeal.
  5. 5.Whether the legal representatives of the deceased respondent should be substituted for him under rule 83 of the Court of Appeal Rules.

Key legal issues

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01

Whether an intended appeal, of which only a notice of appeal has been lodged and an application for extension of time to file the record is pending, can abate under rule 96 of the Court of Appeal Rules.

Holding

No. Rule 96 presupposes an appeal already instituted; where no appeal has been instituted, no abatement of any appeal occurs under the Rules.

Reasoning

The Judge accepted Mr. Kamere's submission that rule 96 only takes effect where an appeal has been instituted and is in existence. Rule 96(1), which requires the Court to cause the legal representative of a deceased appellant or respondent to be made a party, assumes the appeal was instituted before death. Here there was merely a lodged notice of appeal and a pending extension application, so no appeal had abated; the intended appellant remained free to institute an appeal within rule 74(2) time or any extension granted under rule 4.

p. 4
02

When does an appeal abate where the appellant or respondent died before the appeal was instituted?

Holding

The 12-month period in rule 96(2) runs from the date of death; an appeal instituted after death, with no rule 96(1) application made within 12 months of the death, abates immediately upon institution.

Reasoning

An appeal validly instituted within an extension granted under rule 4, and in accordance with rules 81 and 83, would be in being, and its abatement would be governed by rule 96(2), which fixes the period at 12 months from the date of death of the appellant or respondent. The Rules contain no provision that abatement occurs within 12 months of institution or of death, whichever is later. Accordingly, where death precedes institution and no substitution application was made in time, the appeal abates the moment it is instituted.

p. 4
03

What is the effect of Order XXIII of the Civil Procedure Code on the High Court suit after the death of the plaintiff?

Holding

The suit abated under Order XXIII rule 3(2), no application for substitution having been made within one year of the plaintiff's death, with the result that the judgment in favour of the deceased against Mr. Rach can no longer be enforced.

Reasoning

Order XXIII rule 1 provides that death does not cause a suit to abate where the cause of action survives; rule 2 was inapplicable because there was a sole plaintiff and sole defendant; rule 3(1) obliges the court, on application, to join the legal representative of a deceased sole plaintiff where the cause of action survives; rule 3(2) provides that if no such application is made within one year the suit abates as far as the deceased plaintiff is concerned. Mr. Hira's letter of 23 March 2007 asserting abatement was held to be correct.

p. 3
04

Whether extension of time to file and serve the record of appeal should be granted.

Holding

Refused. Although the delays were not inordinate, any appeal instituted under the extension would abate immediately for want of a rule 96(1) substitution application within 12 months of the respondent's death; granting it would be to act in vain.

Reasoning

The Judge expressly found the delays not inordinate and would otherwise have granted the extension. However, since the Court will do nothing in vain, he asked whether an appeal made possible by the extension would be bound to abate for want of any application under rule 96(1) within 12 months of the respondent's death on 6 March 2004. Concluding that it would abate immediately upon institution, he refused the extension as futile and dismissed the application with costs.

p. 4
05

Whether the legal representatives of the deceased respondent should be substituted for him under rule 83 of the Court of Appeal Rules.

Holding

Yes. The Substitution Application dated 28th September 2005 was allowed as prayed, substituting Mary A. A. Obwaka, Enock Olando Obwaka and Nicholas Akula Obwaka for the deceased respondent, with the costs of that application to the respondent.

Reasoning

Rule 83(2) provides that an appeal is not incompetent merely because the respondent was dead at institution, the Court causing the legal representative to be made a party on the application of an interested person. Although the superior court suit had abated and the extension had been refused, the Judge saw no reason to refuse substitution, allowing it as prayed in case there was need for any further litigation in the Court on behalf of the deceased, and ordered the applicant to pay the costs of that application.

p. 5

Legal principles established

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  • An appeal abates under rule 96(2) of the Court of Appeal Rules only after it has been instituted; a lodged notice of appeal and a pending application for extension of time to file a record of appeal do not constitute an appeal capable of abating.
  • The 12-month abatement period under rule 96(2) runs from the date of death of the appellant or respondent, not from the date of institution of the appeal; consequently, an appeal instituted after the party's death, with no rule 96(1) substitution application made within 12 months of the death, abates immediately upon institution.
  • A court will not grant an extension of time where the appeal it would permit is bound to abate; the discretion is defeated by futility, since the Court will do nothing in vain.
  • Where no application is made under Order XXIII rule 3(1) of the Civil Procedure Code to join the legal representative of a deceased sole plaintiff within one year of death, the suit abates under rule 3(2) and the judgment obtained by the deceased plaintiff can no longer be enforced.
  • Under rule 77 of the Court of Appeal Rules, a notice of appeal is not incompetent merely because the person to be served was dead when it was lodged; the notice must instead be served as soon as practicable on the deceased's legal representative, whether or not that representative has been substituted.
  • Under rule 83(2) of the Court of Appeal Rules, an appeal is not incompetent merely because the respondent was dead at the time of institution; the Court will, on the application of an interested person, cause the legal representative of the deceased to be made a party in place of the deceased.

Court orders

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  1. 1.The application by notice of motion for extension of time dated 14th June 2004 in Civil Application No. 134 of 2004 dismissed with costs.
  2. 2.Substitution Application dated 28th September 2005 allowed as prayed: Mary A. A. Obwaka, Enock Olando Obwaka and Nicholas Akula Obwaka substituted in place of Dr. Paul Titus Obwaka, late deceased, as respondent.
  3. 3.The respondent's costs of the substitution application to be paid by the applicant to the respondent.

The bench

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

WD
majority

Wrote the judgment

On appeal from
High Court of Kenya
H.C.C.C. No. 2389 of 1995
Jurisdiction invoked
Single-Judge jurisdiction of the Court of Appeal under rule 52 of the Court of Appeal Rules, exercising the rule 4 power to extend time and the rule 83 power of substitution; no constitutional provision invoked.

Relief refused

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Extension of time (leave) to file and serve the record of appeal out of time, together with costs of the application.

Although the delays were held not inordinate, any appeal instituted under the extension would abate immediately under rule 96(2) because no application was made under rule 96(1) within 12 months of the respondent's death; the High Court suit had itself abated, and granting the extension would be to act in vain.

p. 4

Costs

The extension application dated 14th June 2004 was dismissed with costs; and the respondent's costs of the substitution application shall be paid by the applicant to the respondent.

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.

I am of the view that an appeal can only abate by virtue of rule 96 (2) after such appeal has been instituted.
p. 4Abatement under rule 96(2) applies only to instituted appeals
In my view if the date of death of the appellant or respondent precedes the institution of the appeal, the appeal will abate immediately it is instituted.
p. 4The 12-month period runs from the date of death; a post-death institution abates immediately
I have come to the reluctant conclusion that for me to grant an extension of time to institute an appeal would be to act in vain since such appeal would immediately abate.
p. 4Futility defeats the discretion to extend time
It would appear from Orders XXIII rule 3 (2) that the suit in the High Court has abated with the result that the judgment in favour of the deceased Doctor against Mr. Rach can no longer be enforced.
p. 3Abatement of the High Court suit under Order XXIII rule 3(2) of the Civil Procedure Code
For these reasons I hereby order that the application by notice of motion for extension of time dated 14th June 2004 in Civil Application No. 134 of 2004 is hereby dismissed with costs.
p. 4Final orders - extension application dismissed with costs
MARY A. A. OBWAKA, ENOCK OLANDO OBWAKA AND NICHOLAS AKULA OBWAKA be substituted in place of DR. PAUL TITUS OBWAKA late deceased in this case as the respondent
p. 5Final orders - substitution of the deceased respondent's legal representatives
The respondent's costs of this substitution application shall be paid by the applicant to the respondent.
p. 5Final orders - costs of the substitution application

Issues in the judgment

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minor

Authorship of the decision intended to be appealed is uncertain on the face of the ruling: it records that the judgment of 31 May 2000 was delivered by Justice Joyce Aluoch but appears to have been written and signed by Waki J.

minor

The second name of the second substituted legal representative is spelt 'Enoch' in the grounds of the Substitution Application but 'ENOCK' in the order granting substitution.

minor

The coram heading misprints 'Nairobi' as 'irobi' and describes the decision of 31 May 2000 as a 'ruling', whereas the body of the judgment quotes it as a judgment ('Judgment will therefore be entered in favour of the Plaintiff').

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "CHANDULAL BHIMJI RACH v DR. PAUL TITUS OBWAKA [2007] KECA 306 (KLR)", Case Analysis (2007). Civil Application No. 134 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/306/eng@2007-05-18

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