Ouya & another (Suing as personal representatives of the Estate of the late Faith Judith Ouya) v Gicimu as personal representative of the estate of the Late Uwe Kerschek & 2 others
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the appeal was incompetent due to an incomplete record of appeal
Although the record lacked the ruling and proceedings, the court did not strike out the appeal since no application to strike out was filed; the omission placed the court in difficulty but was not fatal in the circumstances.
The court applied Tropicana Hotels on the mandatory content of rule 87(1) records, acknowledged the missing ruling and proceedings, but noted the respondent had not moved to strike out the record. The court proceeded to determine the appeal despite the incomplete record, treating the omission as a practical difficulty rather than a jurisdictional bar.
Whether the suit against the deceased first defendant had abated
The suit had not abated because the appellants filed the substitution application on November 25, 2015, within one year of the deceased's death on July 14, 2015.
Under order 24 rule 4 CPR, abatement occurs only where no application is made within one year to join the deceased defendant's legal representative. The November 25, 2015 application was timeous; its existence on the record vitiated the later order declaring abatement. Abatement takes effect by effluxion of time, not by court declaration, but here the timeous application prevented abatement altogether.
Whether the ELC judge erred in dismissing the substitution application and closing the file
The judge was wrong: the application was never heard on the merits, the suit was marked abated without any party moving the court, and the file was closed improperly.
The court agreed with the appellants that the file should not have been closed before hearing them and without any party moving the court. Since the substitution application was never prosecuted or heard on its merits, dismissing it and declaring abatement denied the appellants a fair hearing; the proper course was a fresh hearing before another judge.
Legal principles established
#- Where an application to substitute the legal representative of a deceased defendant is made within one year of death under order 24 rule 4 of the Civil Procedure Rules, the suit does not abate, and the existence of such a timeous application vitiates a later order declaring the suit abated.
- Abatement of a suit occurs by effluxion of time and is not dependent on the court's attention being drawn to that fact.
- Inclusion of all documents enumerated in rule 87(1) of the Court of Appeal Rules in a record of appeal is mandatory in the absence of directions under sub-rule (3), and non-compliance vitiates the record.
Court orders
#- 1.The order of the ELC made on March 11, 2019 and issued on April 12, 2019 be and is hereby set aside
- 2.The application dated September 18, 2018 together with that of November 25, 2015 is sent back to the ELC for re-hearing
- 3.The applications be heard by any other ELC judge other than A Omollo, J
- 4.The appellants will have the costs of this appeal
- On appeal from
- Environment and Land Court, Mombasa
- Mombasa Environment and Land Court Case 133 of 2014
- Jurisdiction invoked
- First appeal from the Environment and Land Court under the Court of Appeal Rules; mandate set out under rule 31(1)(a) of the Court of Appeal Rules, 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ouya & another (Suing as personal representatives of the Estate of the late Faith Judith Ouya) v Gicimu as personal representative of the estate of the Late Uwe Kerschek & 2 others", Case Analysis (2022). Civil Appeal 64 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1273/eng@2022-11-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.