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Court of AppealOtherNot stated in the judgment· [2024] KECA 580 (KLR)

Mohammed Azhar s/o Mohamed Akram v Singh & 4 others (Civil Appeal (Application) 23 of 2019) [2024] KECA 580 (KLR)

Court of Appeal of Kenya
24 May 2024
DMD. K. MusingaASAsike-MakhandiaSKS. ole Kantai
444 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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When a party to an appeal dies in Kenya, you must ask the court to substitute their legal representative within 12 months, or the appeal dies with them.

What this practically means

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Executive summary

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This is a brief Court of Appeal ruling delivered at Nairobi on May 24, 2024 by Musinga, Asike-Makhandia and ole Kantai, JJ.A., concerning the applicant's notice of motion dated January 28, 2019 seeking stay of execution of a judgment and decree issued by the Environment and Land Court (Mutungi, J.) on July 23, 2015. The Court recounted that when the application came up on June 21, 2023 before Okwengu, Mativo and Ngenye-Macharia, JJ.A., the applicant was absent, the 1st respondent was reported dead with no substitution effected, and the application was marked as having abated. When the application was listed again on May 6, 2024, Ms. Farah Azhar, a relative of the applicant, attended and confirmed that the appellant had died on March 8, 2021, again with no substitution. Applying Rule 102 of the Court's Rules, which provides that an appeal shall not abate on death provided an application to join the legal representative is made within twelve months, failing which the appeal abates, the Court held that the appeal had abated. It nonetheless noted that the legal representatives of the deceased parties remained at liberty to apply for revival of the appeal upon showing sufficient cause. The Court further held that Ms. Farah Azhar, not having been substituted for the deceased appellant, lacked locus standi to prosecute the appeal or the pending application. No costs order was made and no decision below was disturbed.

Key legal issues

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01

Abatement of appeal on death of parties without substitution

Holding

The appeal abated because both the appellant (died March 8, 2021) and the 1st respondent died and no application for substitution of legal representatives was made within twelve months

Reasoning

Rule 102 of the Court's Rules provides that an appeal does not abate on death provided an application is made to join the legal representative within twelve months; failing which the appeal abates. A person claiming to be a legal representative may apply to revive an abated appeal upon showing sufficient cause. Here, no substitution was ever effected for either deceased party, and the application had already been marked as abated on June 21, 2023. The relative attending court, Ms. Farah Azhar, had not been substituted and therefore could not prosecute the application.

p. 2

Legal principles established

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  • An appeal does not automatically abate on death, but abates if no application to substitute the legal representative is made within twelve months of the death.
  • A person who has not been substituted as legal representative of a deceased party has no locus standi to prosecute the appeal or pending applications in it.

Court orders

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  1. 1.The appeal was declared to have abated
  2. 2.The legal representatives of the deceased parties were granted liberty to apply for revival of the appeal if they so wish
  3. 3.Ms. Farah Azhar was declared to lack locus standi to prosecute the appeal or the pending application

Authorities

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Legislation

  • Court of Appeal RulesRule 102
On appeal from
Environment and Land Court
Jurisdiction invoked
Inherent/appellate jurisdiction of the Court of Appeal under Rule 102 of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mohammed Azhar s/o Mohamed Akram v Singh & 4 others (Civil Appeal (Application) 23 of 2019) [2024] KECA 580 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/580/eng@2024-05-24

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