William Kipkosgei Serem v Tabarno Busienei alias Martha Jepkimo Busienei & Another
The bottom line
#Kenya's Court of Appeal refused to revive a dead land appeal because the applicant, who knew of the death, delayed and used the process in bad faith.
What this practically means
#Executive summary
#Key legal issues
#Sufficient cause for revival of an abated appeal
Delay in obtaining letters of administration is not by itself sufficient cause, particularly where the applicant acted as the deceased's attorney during the trial and knew of her death
The applicant held a power of attorney, defended and testified for the deceased, was aware of her death, yet did not seek an interim grant to prosecute the appeal. Instead he pursued succession and registered himself as heir to the entire suit land. His conduct negated sufficient cause and evidenced bad faith, disentitling him to revival of the abated appeal.
Abuse of process
An application for revival brought to resuscitate a superseded appeal after self-help registration of the disputed land is an abuse of the process of the court
The applicant caused himself to be registered as heir to the whole land, including portions awarded to the respondents, prompting a fresh suit and an injunction in the Environment and Land Court. Reviving the appeal would serve that improper purpose; the court therefore dismissed the application as bad faith litigation.
Legal principles established
#- An abated appeal may be revived under Rule 99(3) only where the legal representative proves sufficient cause preventing continuation of the appeal
- Revival will be refused where the applicant's conduct shows bad faith and abuse of process, including where the judgment has been superseded by a probate court's transmission of the suit land
Court orders
#- 1.The application for revival of the abated appeal is dismissed with costs to the respondents
- On appeal from
- High Court
- Kitale Civil Suit No. 119 of 2012
- Jurisdiction invoked
- Rule 99(3) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "William Kipkosgei Serem v Tabarno Busienei alias Martha Jepkimo Busienei & Another", Case Analysis (2018). Civil Application No. 68 of 2017 (UR 46/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/842/eng@2018-02-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.