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ELCPartially AllowedBungoma CMCC No. 423 of 2002 (Appeal therein)· [2019] KEELC 3709 (KLR)

Susan Khisa v Peter Wanyama Kerre & another [2019] KEELC 3709 (KLR)

High Court of Kenya
25 April 2019
BOBoaz N. Olao
314 words in judgment
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The bottom line

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When a Kenyan appellant dies without being replaced by a legal representative, the appeal dies with them—but the estate escaped paying costs.

What this practically means

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Executive summary

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This ruling by Boaz N. Olao, Judge, decided an unopposed Notice of Motion dated 30th April 2018 brought by the Respondents in an appeal pending before the High Court at Bungoma. The appeal had been filed on 12th May 2014 against the judgment of the Honourable Magistrate delivered on 7th May 2014 in Bungoma CMCC No. 423 of 2002. The Respondents sought a declaration that the appeal had abated because the appellant died on 30th May 2015 and was never substituted, and that the costs of the application and the appeal be recovered from the deceased's estate. Although the Respondent's supporting affidavit by Peter Wanyama Kerre did not attach a certificate of death, the averment of death was unrebutted - the appellant's advocates, M/S Omundi Bwonchiri, were served but filed no response. The court therefore accepted that the appellant died on 30th May 2015 and concluded that the appeal had abated. On costs, the court exercised its discretion against the Respondents, declining to burden the appellant's estate with the costs of either the application or the appeal. The motion was accordingly allowed in part: the prayer that the appeal abate was granted, but with no orders as to costs. The ruling was delivered in open court at Bungoma on 25th April 2019, with Mr. Murunga present for the Respondent and the appellant absent.

Key legal issues

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01

Abatement of appeal upon death of the appellant

Holding

The appeal abated as the appellant died on 30th May 2015 and was never substituted

Reasoning

The Respondent averred that the appellant, who filed the appeal on 12th May 2014 after the magistrate's judgment of 7th May 2014, died on 30th May 2015 and was not substituted. Although no death certificate was produced, the averment went unrebutted as the application was unopposed, so the court accepted the death and concluded the appeal had abated.

p. 1
02

Costs against the deceased appellant's estate

Holding

Costs were refused; the estate was not to bear the costs of the application or appeal

Reasoning

The court treated costs as a discretionary matter and exercised that discretion in favour of the deceased's estate, holding there was no reason to burden it with costs despite granting the abatement order.

p. 1

Legal principles established

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  • An appeal abates where the appellant dies and is not substituted, and an unrebutted averment of death may be accepted even without a death certificate

Court orders

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  1. 1.The appeal has abated
  2. 2.No orders as to costs
On appeal from
Magistrates' Court
Bungoma CMCC No. 423 of 2002
Jurisdiction invoked
Appellate jurisdiction over an appeal from the magistrates' court; application for a declaration that the appeal has abated upon death of the appellant

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, "Susan Khisa v Peter Wanyama Kerre & another [2019] KEELC 3709 (KLR)", Case Analysis (2019). Bungoma CMCC No. 423 of 2002 (Appeal therein). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3709/eng@2019-04-25

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