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Court of AppealAllowedCivil Application 106 of 2019· [2022] KECA 1218 (KLR)
Sidhu & another (Executors of the Estate of Raghbir Singh Sidhu) v Tenai & 6 others
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·~1 min to read original · ~4 min briefThe bottom line
#The Court of Appeal confirmed that substituting a deceased party within one year of death keeps an appeal alive in Kenya.
What this practically means
#Executive summary
#This is a short single-judge ruling of the Court of Appeal at Kisumu (F Tuiyott, JA) on a notice of motion dated June 10, 2022 seeking the substitution of the 1st respondent, Raghbir Singh Sidhu, who died on April 3, 2021 in Western Australia at the age of 75. The applicants, Davinder Kaur Sidhu and Sanjeev Patel, are the executors of his estate, having obtained a grant of probate of his will on November 3, 2021 in Eldoret Succession Cause No. 23 of 2021. The underlying appeal arises from a judgment of the Environment and Land Court at Eldoret (A. Ombwayo, J) dated December 21, 2019 in Eldoret ELC No. 200 of 2015, a land dispute. The facts supporting death and probate were contained in a joint affidavit sworn on June 12, 2022 and were uncontroverted, as no response to the application was filed. The court held that because the substitution application was brought within one year of the death, the appeal had not abated under Rule 99 of the Court of Appeal Rules (now Rule 102), and the application was therefore merited. The court allowed the motion, substituting the executors in place of the deceased 1st respondent, and made no order on costs. The decision keeps the appeal alive for determination on its merits.
Key legal issues
#01
Substitution of a deceased respondent in a pending appeal
Holding
The executors of the deceased respondent's estate were substituted for the deceased, keeping the appeal alive.
Reasoning
Raghbir died on April 3, 2021. Probate of his will issued to Davinder and Sanjeev on November 3, 2021 in Eldoret Succession Cause No. 23 of 2021. These facts were uncontroverted as no response was filed. The substitution application was made within one year of death, so under Rule 99 (now Rule 102) the appeal had not abated and substitution was merited.
p. 2
Legal principles established
#- An application for substitution brought within a year of a party's death prevents the appeal from abating and is merited.
Court orders
#- 1.Davinder Kaur Sidhu and Sanjeev Patel be made party to the appeal in place of the 1st respondent, Raghbir Singh Sidhu
- 2.No order on costs
- On appeal from
- Environment and Land Court of Kenya at Eldoret
- Eldoret ELC No. 200 of 2015
- Jurisdiction invoked
- Rule 99 of the Court of Appeal Rules (now Rule 102) - substitution of a deceased party to prevent abatement of appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sidhu & another (Executors of the Estate of Raghbir Singh Sidhu) v Tenai & 6 others", Case Analysis (2022). Civil Application 106 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1218/eng@2022-11-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.