Nicholas Kundu Wanyama v Benson Kosgei Kibet & Jane Nyongesa [2020] KEELC 664 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to pause a land case because the related appeal died when the appellant passed on and was never revived.
What this practically means
#Executive summary
#Key legal issues
#Whether Eldoret HCCA No. 140 of 2007 abated upon the death of the appellant
The appeal abated on or about 5th July 2009, one year after the appellant's death, with no substitution or revival; the Plaintiff's deposition to that effect remained unchallenged.
The appellant died on 5th July 2008. Under Order 24 rule 3 of the Civil Procedure Rules an appeal abates one year after a party's death if no substitution or revival occurs. The 2nd Defendant attempted to prove an application for revival through written submissions rather than affidavit evidence, which the court held inadmissible, leaving the abatement unrebutted.
Whether Order 24 of the Civil Procedure Rules applies to appeals
It does; the contention that Order 24 relates only to original suits does not hold water.
Relying on Kent-Knit (K) Ltd v Ali Bakari, the court held that an appellant stands in the same position as a plaintiff, so the whole order applies to appeals; otherwise appeals would never abate on a party's death. The Court of Appeal in George Mbiti Kiebia also acknowledged that an appeal abates on a party's death.
Whether these proceedings are sub-judice Eldoret HCCA No. 140 of 2007 and whether stay should issue
No stay; the appeal having abated, there is no pending matter to justify staying the active suit.
Stay of active proceedings in aid of another matter presupposes that the other matter is pending. Since the appeal abated, staying this suit would be defeatist and unreasonable. Res judicata does not arise against the 1st Defendant, who was not party to the earlier suit and is now registered with the land.
Legal principles established
#- For there to be a reasonable basis to stay active proceedings pending another suit or appeal, that other matter must itself be active or pending.
- Order 23/Order 24 of the Civil Procedure Rules on abatement applies to appeals as well as suits; an appeal abates if a party dies and no substitution takes place within one year.
- Abatement under Order 24 of the Civil Procedure Rules is not a technicality curable under Article 159 of the Constitution.
- Evidence cannot be adduced through written submissions; matters relied on must be deponed to in an affidavit to be admissible.
Court orders
#- 1.The 2nd Defendant's Notice of Motion dated 28th February, 2020 seeking stay of proceedings pending hearing and determination of Eldoret Civil Appeal No. 140 of 2007 is dismissed
- 2.The 2nd Defendant to pay the Plaintiff's costs of the application
- 3.The ruling to be transmitted digitally by the Deputy Registrar to the counsel on record through their e-mail addresses
- Jurisdiction invoked
- Inherent and procedural jurisdiction under Sections 1A, 1B, 3A, 6, 16, 17 and 18 of the Civil Procedure Act and Order 47 Rule 6 of the Civil Procedure Rules (as invoked by the 2nd Defendant's application)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nicholas Kundu Wanyama v Benson Kosgei Kibet & Jane Nyongesa [2020] KEELC 664 (KLR)", Case Analysis (2020). Notice of Motion dated 28th February, 2020 in the principal suit (suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/664/eng@2020-11-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.