Elizabeth Amaiza v Jackson Sabatia Natse & 3 others [2010] KECA 28 (KLR)
The bottom line
#Kenya's Court of Appeal allowed a deceased respondent to be replaced by her estate's administrator, confirming applications under Rule 96 must be filed within 12 months of death.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the deceased 1st respondent, referred to as 'Sabeti Amaiza' or 'Elizabeth Amaiza', may be substituted by her administrator William Shivachi Miheso in the pending appeal
- 2.Whether the application was brought within the 12-month limitation period under Rule 96(2) of the Court of Appeal Rules
Key legal issues
#Competency of a Rule 96 substitution application where the death certificate bears a different name from the party on record
Evidence of identity by affidavit, coupled with an unopposed application and a grant of letters of administration, suffices to establish that the deceased party and the person named in the death certificate are the same.
The court relied on the certificate of death annexed to the supporting affidavit showing 'Sabeti Amaiza' died on 7th October 1979, and the grant of letters of administration issued to the applicant on 19th March 2010. The applicant deposed that 'Sabeti Amaiza' and 'Elizabeth Amaiza' were one and the same person. The respondents, though served, neither filed a replying affidavit nor attended the hearing, so the application was unopposed.
Compliance with the limitation period in Rule 96(2)
The application filed on 9th April 2010 was within the 12-month limitation period stipulated in Rule 96(2) of the Court of Appeal Rules and was therefore competent.
The court verified the date of death (7th October 1979) from the certificate annexed to the supporting affidavit and the filing date of the application (9th April 2010), and was satisfied that the application fell within the 12-month period prescribed by Rule 96(2). The absence of opposition was also noted in concluding the application was competent.
Legal principles established
#- An application to substitute a deceased party under Rule 96 must be filed within 12 months of the death, as stipulated by Rule 96(2) of the Court of Appeal Rules.
Court orders
#- 1.William Shivachi Miheso, administrator of the estate of Elizabeth Amaiza (deceased), is made a party in the appeal in place of the deceased 1st respondent
- 2.Costs of the application are awarded in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya
- Jurisdiction invoked
- Rule 96 of the Court of Appeal Rules (substitution of a party on account of death)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the circumstances I am satisfied that the application, which is not in any case opposed, is competent and I allow it with costs in the appeal.
The present application was filed on 9th April 2010, within the 12 months limitation period stipulated in Rule 96(2) of the Court of Appeal Rules.
Orders accordingly.
Issues in the judgment
#Discrepancy in the name of the deceased between the appeal record ('Elizabeth Amaiza') and the death certificate ('Sabeti Amaiza'), resolved by the applicant's affidavit evidence
Typographical error in the certification line of the judgment copy
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elizabeth Amaiza v Jackson Sabatia Natse & 3 others [2010] KECA 28 (KLR)", Case Analysis (2010). Civil Appeal No. 316 of 2006 (application under Rule 96). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/28/eng@2010-12-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.