Davanis Supplies Limited & 2 others v Zone & 2 others (Civil Appeal (Application) 69 of 2019) [2025] KECA 1027 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that an appeal does not die just because a respondent passed away before the appeal was formally filed — substitution fixes it.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appeal against the deceased 1st respondent has abated, given that he died before the record of appeal was filed and no substitution was ever sought
Key legal issues
#Whether an appeal abates where the respondent died before the record of appeal was filed
No. Abatement under rule 99 applies only to appeals already instituted; the deceased died when there was only an intended appeal, so rule 85 on death of a party to an intended appeal governed, and the appeal does not abate nor is it incompetent.
A notice of appeal evinces only an intention to appeal; the appeal is instituted when the record of appeal is filed. Here the deceased died on 27th December 2008, long before the record was filed on 26th February 2019. Rule 99 concerned 'Death of party to appeal', while the relevant provision was rule 85 on 'Death of a party to an intended appeal'. Under rule 85(2) the appeal is not incompetent, and any interested person may apply for substitution of the legal representative.
Effect of failure to substitute the deceased respondent before or after institution
The failure to substitute does not abate the appeal in these circumstances; under rule 85(2) the Court may, on application of any interested person, cause the legal representative to be made a party in place of the deceased.
The identity of the legal representatives was known to the appellants before institution, so the appeal should have been instituted in their names. Nonetheless the appeal is saved by rule 85(2), which prevents incompetence by reason only of the respondent's death and allows any interested party, including the personal representatives, to seek substitution. The motion for abatement was therefore misconstrued and dismissed with costs.
Legal principles established
#- Only an instituted appeal, not an intended appeal, can abate; where a respondent dies after notice of appeal but before the record of appeal is filed, the governing provision is the rule on death of a party to an intended appeal, and the appeal is not incompetent by reason only of the respondent's death.
- Where a respondent dies before institution of the appeal and the legal representatives are known, the appeal ought to be instituted in the name of the legal representatives; but by rule 85(2) any interested party may apply to have the legal representatives made parties in place of the deceased.
Court orders
#- 1.The notice of motion dated 10th October 2019 seeking abatement of the appeal is dismissed with costs to the appellants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Jurisdiction invoked
- Appellate jurisdiction under the Court of Appeal Rules, 2010 (rule 85 on death of a party to an intended appeal), the retired rules applying to the motion
Relief refused
#Abatement of the appeal against the deceased 1st respondent
The motion was misconstrued: the deceased died before the appeal was instituted, so rule 99 on abatement of appeals did not apply; rule 85 governed and under it the appeal is not incompetent
Costs
Dismissed with costs to the appellants
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
At the time of the death of the deceased there was no appeal but an intended appeal.
In the scheme of the current rules, as was the previous rules, an appeal and not an intended appeal can abate. A notice of appeal simply evinces an intention of a party to appeal.
The notice of motion dated 10th October 2019 is misconstrued and is hereby dismissed with costs to the appellants.
Issues in the judgment
#The judgment refers inconsistently to the date of the notice of motion: it opens describing 'the notice of motion dated 14th October 2019' but the operative order dismisses 'The notice of motion dated 10th October 2019'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Davanis Supplies Limited & 2 others v Zone & 2 others (Civil Appeal (Application) 69 of 2019) [2025] KECA 1027 (KLR)", Case Analysis (2025). Civil Appeal (application) — notice of motion dated 14th October 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1027/eng@2025-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.