Mugo & another v Mugo & 2 others (Civil Appeal 1 of 2013) [2021] KECA 61 (KLR)

Court of Appeal

8 October 2021

DMD K Musinga MAM S Asike-Makhandia FSF Sichale

219 words in judgment

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The bottom line

The Court of Appeal ruled that an appeal dies when the respondents die and substitution is refused — so act fast to replace deceased parties.

What this practically means

Executive summary

This short order of the Court of Appeal at Nyeri, delivered on 8 October 2021 by a bench of Musinga, Asike-Makhandia and Sichale, JJA, disposed of Civil Appeal 1 of 2013 by declaring that it had abated. The appeal, brought by Edward Njagi Mugo and Gideon Kiura Mugo against Stephen Muna Mugo, Mugo Nyaga and Anthony Mbiri Ndwiga, was an appeal from the judgment dated 16 November 2011 of the High Court at Embu in Civil Appeal No. 27 of 2000 (Okwengu J, delivered by Ongu'di J). By the time the matter came before the Court of Appeal, all three respondents were deceased. An application for revival of the appeal was dismissed, and an application for substitution of the deceased respondents had previously been dismissed. In consequence, the court marked the appeal as having abated. The order contains no costs order, no citation of authorities or statutory provisions, and no separate opinions by any member of the bench; it is a single order of the court. Its practical significance lies in confirming that an appeal which depends on proceedings against deceased respondents, where substitution has been refused and revival is not granted, is marked as abated rather than determined on its merits. The underlying High Court decision is unaffected by any merits determination in this proceeding.

Key legal issues

Abatement of appeal upon death of respondents and failure of substitution

Holding

The appeal abated because the respondents died more than a year before and the application for their substitution had been dismissed; the application for revival was also dismissed.

Reasoning

The court recorded that the appeal was against respondents who were deceased. Given the deaths and the prior dismissal of the substitution application, the appeal could not proceed against the deceased respondents, and the application for revival was refused. The court accordingly marked the appeal as abated rather than allowing it to continue against the deceased parties' estates or representatives.

p. 1

Legal principles established

An appeal abates where the respondents die and an application for their substitution is dismissed; such an appeal cannot be revived.

Court orders

1.The application for revival of the appeal was dismissed
2.The appeal is marked as having abated, the respondents having died more than a year ago and an application for their substitution having been dismissed

On appeal from: High Court at Embu; Embu High Court Civil Appeal No. 27 of 2000
Jurisdiction invoked: Inherent/appellate jurisdiction of the Court of Appeal over Civil Appeal 1 of 2013; no specific constitutional or statutory provision is cited in the order.

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Mugo & another v Mugo & 2 others (Civil Appeal 1 of 2013) [2021] KECA 61 (KLR)", Case Analysis (2021). Civil Appeal 1 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/61/eng@2021-10-08

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