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Court of AppealDismissedCivil Appeal (Application) No. 75 of 2013

Francis Sirma Kios v Kibore Sigilai [2018] KECA 547 (KLR)

Court of Appeal of Kenya
31 May 2018
1,433 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to revive a dead appeal because the appellant waited a year without explaining the delay, so the High Court judgment stands.

What this practically means

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Executive summary

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This was an omnibus Notice of Motion under Rules 4, 44, 47, 88, 99(1) and 99(3) of the Court of Appeal Rules seeking substitution of a deceased respondent, revival of an abated appeal, maintenance of status quo, and leave to file a supplementary affidavit. The underlying suit concerned ownership of land parcel Waseges/Nyamamithi Block 4/57 Ogilgei, in which the High Court at Nakuru (Anyara Emukule, J.) on 18th May 2012 dismissed the plaintiff's claim and entered judgment on the defendant's counterclaim. The plaintiff's appeal, Civil Appeal No. 75 of 2013, was marked abated on 31st January 2017 when the Court learned the respondent had died on 20th October 2014. The applicant contended he had made futile attempts to secure substitution and only learned of the grant of letters of administration when counsel supplied it on 31st January 2017. The respondent, the deceased's son who had been substituted in the High Court by consent in 2010, countered that the applicant was guilty of laches and that the delay of a full year after receiving the grant was inordinate and unexplained. The Court agreed: the applicant knew of the death in good time, received the grant in open court on 31st January 2017, yet filed the motion on 30th January 2018 without any reasonable explanation for the delay. Noting also that the High Court decree had long been executed and possession taken, the Court declined to exercise its discretion, dismissed the application and awarded costs to the respondent. The decision below was not disturbed; it stands.

Questions the Court framed

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

  1. 1.Whether the abated Civil Appeal No. 75 of 2013 should be revived under Rule 99(3) of the Court of Appeal Rules
  2. 2.Whether the legal representatives of the deceased respondent should be substituted
  3. 3.Whether an inordinate and unexplained delay disentitles the applicant to the discretionary relief of revival
  4. 4.Whether status quo should be maintained pending determination of the appeal

Key legal issues

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01

Revival of an appeal abated under Rule 99(2) of the Court of Appeal Rules

Holding

The Court declined to exercise its discretion to revive the abated appeal because the applicant was guilty of inordinate and unexplained delay and the decree had been executed

Reasoning

The applicant knew of the respondent's death in good time and was handed a copy of the grant of letters of administration in open court on 31st January 2017, yet filed the revival motion only on 30th January 2018. The applicant offered no reasonable explanation for that one-year delay. The Court also noted that the High Court decree had long been executed and possession taken, so reviving the appeal would serve no practical purpose. Discretion was accordingly refused.

p. 2

Legal principles established

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  • An applicant for revival of an abated appeal must explain any inordinate delay in bringing the application, particularly where the grant of letters of administration was availed to him and the decree has been executed

Court orders

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  1. 1.The Notice of Motion dated 30th January 2018 seeking revival of the abated appeal, substitution, status quo and leave to file a supplementary affidavit is dismissed
  2. 2.Costs of the application awarded to the respondent

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Nakuru
Jurisdiction invoked
Rules 4, 44, 47, 88, 99(1) and 99(3) of the Court of Appeal Rules (inherent power and revival of abated appeals)

Relief refused

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Revival of the abated Civil Appeal No. 75 of 2013

The applicant knew in good time of the death of the respondent, received the grant of letters of administration on 31st January 2017, and gave no explanation for the one-year delay in filing the motion; the decree had already been executed

p. 2

Substitution of the deceased respondent's legal representatives and maintenance of status quo

These were ancillary to the revival of the abated appeal, which was refused in the exercise of the Court's discretion

p. 2

Costs

There is no merit in the application which we dismiss with costs 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.

The applicant has not given a reasonable explanation for that delay, which we find to be inordinate.
p. 2Inordinate and unexplained delay
There is no merit in the application which we dismiss with costs to the respondent.
p. 2Final orders - dismissal of the motion
we are not persuaded that we should exercise a discretion and revive the abated appeal
p. 2Discretionary refusal to revive an abated appeal

Issues in the judgment

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minor

The judgment states the High Court judgment was executed way back in 2010 in one passage and that the decree was executed in 2012 in another, an internal inconsistency in dates

minor

The ruling refers to an earlier ruling of 10th October 2013 quoting the decree as having been executed, with the year of execution stated inconsistently elsewhere as 2012

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, "Francis Sirma Kios v Kibore Sigilai [2018] KECA 547 (KLR)", Case Analysis (2018). Civil Appeal (Application) No. 75 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/547/eng@2018-05-31

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