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Court of AppealOtherCivil Appeal No. 3 of 2003· [2012] KECA 244 (KLR)

Sultan Hasham Lalji & 2 others v Ahmed Hasham Lalji & 4 others [2012] KECA 244 (KLR)

Court of Appeal of Kenya
16 March 2012
1,144 words in judgment
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The bottom line

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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

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Executive summary

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The Court of Appeal (Onyango Otieno, Karanja and Maraga JJA) ruled on a preliminary objection raised by the 3rd respondent in an appeal against a High Court ruling of O'Kubasu J dated 21 July 2000 in HCCC No. 189 of 1998. The 3rd appellant had died, and the respondents argued that under Rule 96 of the repealed Court of Appeal Rules the entire appeal had abated because substitution had not been sought within twelve months. Counsel for the respondents contended that, by virtue of the Interpretation and General Provisions Act, the singular 'the appellant' in Rule 96 includes the plural, so one death abates a multi-party appeal, and that the survival principle applicable in the High Court does not extend to the Court of Appeal. The appellants urged a broader reading of the current Rule 99 and invoked Sections 3A and 3B of the Appellate Jurisdiction Act and Article 159(2)(d) of the Constitution. Both sides relied on Mary Wanjiru Njuguna v Hezekia Mathara. The court, agreeing with Aganyanya JA's finding in that case, held that Sections 3A and 3B cannot displace clear and unambiguous rules, and that Article 159(2)(d) cannot apply retroactively and concerns only procedural technicalities. Applying the plain meaning rule, it held 'the appellant' and 'the respondent' bear their singular meaning; extending them to the plural would yield the absurd result that a multi-party appeal abates on one death, extinguishing the surviving parties' primordial right of access to justice. The court held that where several parties exist and one dies but the cause of action survives, the surviving parties' right to continue the appeal subsists. The preliminary objection was dismissed with costs to the appellants; the appeal itself was not determined on this ruling.

Key legal issues

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01

Interpretation of 'the appellant' and 'the respondent' in Rule 96 of the Court of Appeal Rules

Holding

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.

Reasoning

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.

p. 3
02

Whether the survival principle applies to appeals in the Court of Appeal

Holding

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.

Reasoning

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.

p. 3
03

Availability of Sections 3A and 3B of the Appellate Jurisdiction Act and Article 159(2)(d) to cure abatement

Holding

Inherent-jurisdiction provisions cannot override clear and unambiguous rules of procedure, and Article 159(2)(d) cannot apply retroactively nor extend beyond procedural technicalities.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The preliminary objection that the appeal had abated is dismissed
  2. 2.Costs of the preliminary objection to the appellants

Authorities

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Legislation

  • Court of Appeal Rules (repealed)Rule 96
  • Court of Appeal RulesRule 99
  • Interpretation and General Provisions ActCap 2
  • Appellate Jurisdiction ActSections 3A and 3B
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (1)

  • MARY WANJIRU NJUGUNA ~VS~ HEZEKIA MATHARA
    [2010] eKLR
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

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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, "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.