Sultan Hasham Lalji & 2 others v Ahmed Hasham Lalji & 4 others [2012] KECA 244 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that when one party in a multi-party appeal dies, the surviving parties can continue the appeal—the case does not collapse.
What this practically means
#Executive summary
#Key legal issues
#Interpretation of 'the appellant' and 'the respondent' in Rule 96 of the Court of Appeal Rules
The words bear their singular meaning; a reading extending them to the plural so that one death abates a multi-party appeal would produce an absurdity and deny remaining parties access to justice, so where the cause of action survives the appeal continues for the surviving parties.
The court applied the plain, literal and grammatical rule of statutory interpretation, modifying it only where it would produce absurdity or repugnancy. Reading the singular as plural would extinguish the surviving co-parties' inherent right of access to justice, a primordial right prerequisite to a fair trial, which the Rules Committee could not have intended. The Interpretation and General Provisions Act was unnecessary because the words are clear and unambiguous.
Whether the survival principle applies to appeals in the Court of Appeal
The court rejected the submission that suits survive death in the High Court but not in the Court of Appeal, holding that the surviving parties' right to continue the appeal subsists where the cause of action survives.
The respondents argued that Rule 96 refers only to 'the sole appellant or sole respondent' and that no survival principle applies on appeal. The court held that such a reading would lead to the absurd conclusion that living co-partitions lose their appeal upon one party's death, denying them access to justice. It noted the Court has consistently heard and determined such appeals to conclusion.
Availability of Sections 3A and 3B of the Appellate Jurisdiction Act and Article 159(2)(d) to cure abatement
Inherent-jurisdiction provisions cannot override clear and unambiguous rules of procedure, and Article 159(2)(d) cannot apply retroactively nor extend beyond procedural technicalities.
Relying on the finding of Aganyanya JA in Mary Wanjiru Njuguna v Hezekia Mathara, which it agreed with, the court held that where an existing rule requires strict compliance, Sections 3A and 3B cannot substitute for it. Article 159(2)(d), enacted long after the appellant's death, cannot apply retroactively; even if it could, abatement under the rule is not a mere procedural technicality.
Legal principles established
#- Where several appellants or respondents exist and one dies, if the cause of action survives the remaining parties may continue the appeal; the appeal does not wholly abate
- Sections 3A and 3B of the Appellate Jurisdiction Act cannot be applied in place of clear and unambiguous rules of procedure
- Article 159(2)(d) of the Constitution does not apply retroactively and does not extend to issues beyond procedural technicalities
Court orders
#- 1.The preliminary objection that the appeal had abated is dismissed
- 2.Costs of the preliminary objection to the appellants
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 189 of 1998
- Jurisdiction invoked
- Appellate jurisdiction under the Appellate Jurisdiction Act (Cap 9); counsel also invoked Sections 3A and 3B of that Act and Article 159(2)(d) of the Constitution, which the court declined to apply
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sultan Hasham Lalji & 2 others v Ahmed Hasham Lalji & 4 others [2012] KECA 244 (KLR)", Case Analysis (2012). Civil Appeal No. 3 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/244/eng@2012-03-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.