Karaya Wa Jonah v Gachimo Mungai [2019] KEELC 660 (KLR)
The bottom line
#The High Court revived a land appeal that had died with the original parties, ruling it was wrongly dismissed without notice and restoring protection against eviction.
What this practically means
#Executive summary
#Key legal issues
#Validity of the dismissal of the appeal for want of prosecution
The dismissal was set aside because the appeal had abated on the death of the appellant and no notice of the show-cause listing was served.
The appellant died on 14th July 2009, so under Order 24 Rule 3(2) and (9) of the Civil Procedure Rules the appeal abated a year later, on 14th July 2010. There was therefore no appeal in existence to dismiss for want of prosecution on 17th January 2015. Further, the record showed no notice was served when the matter was listed for notice to show cause, contrary to Order 17 Rule 2 of the Civil Procedure Rules.
Revival of the appeal and substitution of deceased parties
Good and sufficient reason was shown for the delay in seeking substitution, and no uncompensatable prejudice would be suffered by the respondent.
The applicant explained that the beneficiaries were unaware of the appeal's status due to the negligence of the appellant's previous advocates, who had been struck off the roll, and only learned of the position when execution and eviction were threatened. The court found this sufficient reason for the delay and held any prejudice to the respondent could be compensated in costs, justifying revival and substitution.
Reinstatement of the stay of execution
The stay order granted on 5th July 2007 was reinstated pending the hearing of the appeal.
A stay order had been in existence when the appeal abated and was dismissed. When granted, the court had appreciated that the appellant had occupied the suit property for 40 years and was likely to suffer substantial loss if stay was not granted. The court found from the material before it that the situation had not changed, and so a case was made out for reinstating the stay pending the hearing of the appeal.
Legal principles established
#- Where an appellant dies and the appeal abates under Order 24 Rule 3(2) and (9), there is no subsisting appeal capable of being dismissed for want of prosecution; a dismissal made in those circumstances, and without notice to the parties, is made in error and may be set aside.
Court orders
#- 1.The Notice of Motion application dated 29th August, 2018 is allowed in terms of prayers 2, 3 and 6 thereof
- 2.The appellant shall amend the Memorandum of Appeal within 14 days to incorporate the substitution of the deceased appellant and respondent with their legal representatives
- 3.The order of stay of execution granted on 5th July, 2007 pending the hearing of the appeal is reinstated
- 4.The appellant shall pay to the respondent thrown away costs in the sum of Kshs. 15,000/= forthwith and in any event within 30 days from the date hereof in default of which the respondent shall be at liberty to execute for the recovery thereof
- On appeal from
- Lower court (subordinate court)
- Jurisdiction invoked
- Inherent/appellate jurisdiction over an appeal from the lower court; Civil Procedure Rules Order 24 Rule 3(2) and (9) and Order 17 Rule 2
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Karaya Wa Jonah v Gachimo Mungai [2019] KEELC 660 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/660/eng@2019-11-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.