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Court of AppealDismissedCivil Appeal (Application) 338 of 2019· [2022] KECA 1257 (KLR)

Mose & another v Co-operative Bank of Kenya

Court of Appeal
7 November 2022
LKL. Kimaru
382 words in judgment
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The bottom line

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The Court of Appeal dismissed a late application to substitute a deceased party, confirming that appeals automatically lapse if substitution isn't sought within twelve months of death.

What this practically means

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Executive summary

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This ruling of the Court of Appeal at Nairobi (L. Kimaru, JA) dealt with an application by Mary Kemuma Mose and Esther Shanice Omwenga, the widow and daughter of Onesmus Omwenga Maroko, to be substituted as respondents in an appeal against a judgment of Nzioka wa Makau, J. of the High Court in Nairobi ELC Cause No. 449 of 2013 dated 10th February 2015. The deceased respondent died on 6th August 2021. The applicants obtained a limited grant of letters of administration ad litem on 26th January 2022 from the High Court in Nairobi Succession Cause No. E2536 of 2022, but their advocate predicated the substitution application on the Civil Procedure Rules rather than the Court of Appeal Rules, and lodged it only on 12th October 2022. The court held that under Rule 102(1) of the Court of Appeal Rules, 2022, an appeal abates where no application to substitute a deceased party is made within twelve months of the death. The application was therefore out of time and the appeal had already abated. The application was dismissed, but with no orders as to costs because the appellant had not filed a response. The court pointed the applicants to the remedy of an application for revival of the appeal under Rule 102(3) of the Court of Appeal Rules, 2022. The decision does not disturb the High Court judgment, which remains subject to the abated appeal.

Key legal issues

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01

Effect of failure to apply for substitution within twelve months of a party's death

Holding

The appeal abated by operation of Rule 102(1) of the Court of Appeal Rules, 2022, and a substitution application filed after abatement is without merit and must be dismissed

Reasoning

The deceased respondent died on 6th August 2021. The applicants obtained a limited grant ad litem on 26th January 2022 but lodged the substitution application only on 12th October 2022, beyond the twelve-month period. Rule 102(1) provides that the appeal shall abate in such circumstances, so the application could not succeed.

p. 1
02

Availability of a remedy after abatement

Holding

The applicants retain the liberty to apply for revival of the appeal under Rule 102(3) of the Court of Appeal Rules, 2022

Reasoning

Although the substitution application failed because the appeal had abated, the court noted that abatement is not necessarily the end of the matter; the applicants may pursue the statutory revival mechanism provided by Rule 102(3).

p. 2

Legal principles established

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  • An appeal abates if no application to substitute a deceased appellant or respondent is made within twelve months of the death, under Rule 102(1) of the Court of Appeal Rules, 2022
  • Where an appeal has abated, the remedy of the party seeking substitution is an application for revival of the appeal under Rule 102(3), not a substitution application

Court orders

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  1. 1.The application for substitution is dismissed
  2. 2.No orders as to costs since the appellant did not file a response to the application
  3. 3.The applicants are at liberty to file an appropriate application for revival of the appeal under Rule 102(3) of the Court of Appeal Rules, 2022

Authorities

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Legislation

  • Court of Appeal Rules, 2022Rule 102(1)
  • Court of Appeal Rules, 2022Rule 102(3)
  • Civil Procedure Rules
On appeal from
High Court of Kenya
Nairobi ELC Cause No. 449 of 2013
Jurisdiction invoked
Court of Appeal Rules, 2022 (Rule 102)

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, "Mose & another v Co-operative Bank of Kenya", Case Analysis (2022). Civil Appeal (Application) 338 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1257/eng@2022-11-07

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