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Court of AppealPartially AllowedNot stated in the judgment (application dated 26th March, 2012, brought under Rules 4 and 51(4) of the Court of Appeal Rules)· [2014] KECA 663 (KLR)

Billey Olouch Okun Orinda v Ayub Muthee M'igweta & 2 others [2014] KECA 663 (KLR)

Court of Appeal of Kenya
7 April 2014
Martha Karambu KoomeM. K. Koome
1,807 words in judgment
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The bottom line

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Kenya's Court of Appeal allowed a deceased man's estate to revive a stalled appeal, confirming death does not automatically end a case if substitution happens within 12 months.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nyeri, delivered by M. K. Koome, JA, on 7th April, 2014, on an application under Rules 4 and 51(4) of the Court of Appeal Rules to revive an abated application dated 26th March, 2010, seeking leave to file an intended appeal out of time. The intended appeal challenged a High Court judgment of 30th October, 2009, in which specific performance of a 1990 sale agreement was refused and a refund ordered. The original applicant, Samson Okun Orinda, died on 6th July, 2010, before prosecuting the leave application, which consequently abated under Rule 51(3). The Court noted that the applicant first had to obtain an order of substitution to acquire locus standi to seek revival, and that a prior ruling of 3rd June, 2013 had already substituted him and found his explanation for the delay in obtaining the letters of administration plausible. Despite the respondents' objections based on indolence, non-service, and discrepancies in the dates of the grant, the Court applied the overriding objective under sections 3A and 3B of the Appellate Jurisdiction Act, invoking Caltex Oil Limited v Evanson Wanjihia and City Chemist v Commercial Bank Ltd. It allowed the application, substituted the applicant for the deceased, granted leave to make the necessary application to revive the appeal within 30 days, and directed that costs abide the outcome of the appeal. The Court expressly declined to consider the merits of the abated leave application.

Key legal issues

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01

Whether sufficient cause existed for revival of the abated application under Rule 51(4)

Holding

Yes. Guided by its earlier finding in the substitution ruling of 3rd June, 2013 that the letters of administration were issued on 30th May, 2012 and that the explanation for delay was plausible, the Court found the applicant was prevented by sufficient cause from continuing with the application.

Reasoning

The applicant needed locus standi, which required a prior order of substitution before he could seek revival of the abated application. The delay in obtaining the letters of administration was explained and had already been accepted as plausible in the substitution ruling. The discrepancies in affidavit dates were attributed to a mistake, and the earlier finding of the Court was treated as binding guidance.

p. 3
02

Whether failure to serve the abated application on the respondents barred its revival

Holding

No; service can be effected without prejudice to the respondents.

Reasoning

The respondents objected that the abated application was never served. The Court held this was curable, since the application could simply be served going forward without causing prejudice, in line with the overriding objective of overcoming technicalities.

p. 3

Legal principles established

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  • A civil application in the Court of Appeal does not abate on death of a party; it abates only if no application for substitution of the legal representative is made within 12 months
  • An abated application shall be revived where the person claiming to be the legal representative proves they were prevented by sufficient cause from continuing with it
  • The overriding objective confers latitude on the Court to overcome technicalities in exercising discretion

Court orders

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  1. 1.The Notice of Motion dated 30th May 2012 is allowed
  2. 2.Billey Oluoch Okun Orinda is substituted with Samson Okun Orinda (deceased)
  3. 3.The applicant is granted leave to make the necessary application to revive the appeal within 30 days from the date of this ruling
  4. 4.Costs of this application shall abide the outcome of the appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 4
  • Court of Appeal RulesRule 50
  • Court of Appeal RulesRule 51(1), (2), (3), (4)
  • Constitution of KenyaArticle 159
  • Appellate Jurisdiction ActSections 3A and 3B (Cap 9)
  • Civil Procedure ActSections 1A and 1B (Cap 21)
  • Statute Law (Miscellaneous Amendment) ActNo. 6 of 2009

Cases cited (2)

  • Caltex Oil Limited vs Evanson Wanjihia
    Civil Application No. Nai 190 of 2009 (unreported)
  • City Chemist & Another vs Commercial Bank Ltd.
    Civil Appeal No. Nai. 302 of 2008
On appeal from
High Court of Kenya
Not stated
Jurisdiction invoked
Rules 4 and 51(4) of the Court of Appeal Rules; overriding objective under sections 3A and 3B of the Appellate Jurisdiction Act (Cap 9)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Billey Olouch Okun Orinda v Ayub Muthee M'igweta & 2 others [2014] KECA 663 (KLR)", Case Analysis (2014). Not stated in the judgment (application dated 26th March, 2012, brought under Rules 4 and 51(4) of the Court of Appeal Rules). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/663/eng@2014-04-07

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