Japheth Isinga v Belisi Kagonya Asena (suing as the administrator of the Estate of the late Nathan Asena Ndugu) [2021] KECA 1080 (KLR)

REPUBLIC OF KENYA

IN THE COURT OF APPEAL AT KISUMU

CORAM: (KARANJA, GATEMBU & J. MOHAMMED, JJ.A)

CIVIL APPEAL (APPLICATION) NO. 23 OF 2018

BETWEEN

JAPHETH ISINGA.....................................................................................APPELLANT

AND

BELISI KAGONYA ASENA (suing as the administrator of the Estate of the late

Nathan Asena Ndugu) ...................................................RESPONDENT/APPLICANT

(Being an appeal from the judgment and decree of the Environment&  Land Court at Kakamega (Matheka, J.)

dated 10thOctober, 2017

in

ELC Case No. 321 of 2014

************************

RULING OF THE COURT

Background

1)By way of a Notice of Motion dated 25th February, 2020, brought under Rule 99(2) of the Court of Appeal Rules (the Rules of this Court) Belisi Kagonya Asena (suing as the administrator of the Estate of the late Nathan Asena Ndugu) (the respondent) urges this Court to grant her orders in the main:

a) That the appeal filed by Japheth Isinga (the appellant) has abated;

b) That costs of the appeal and the instant application be provided for.

2)The respondent’s application is based on the following grounds: that the appeal against the impugned judgment of the ELC (Matheka, J.)was lodged on 7th March, 2018; that the appellant died on 6th September, 2018; that no substitution has been brought to date; that over twelve (12) months have lapsed since the demise of the appellant; that no leave or extension of time has been sought; and that it is in the interest of justice that the order sought be granted.

3)The application is supported by an affidavit sworn by the respondent wherein she avers, inter alia, that it is within her knowledge that the appellant passed on in September, 2018 which fact was evidenced by a copy of the Burial Permit No 1148781 dated 8th September, 2018 and a copy of the Chief’s letter in support of her averment; that she is desirous of bringing the matter to rest while the other party appears disinterested; and that it is in the interest of justice that the orders sought be granted.

Determination

4)We have considered the application, the affidavit and the applicablelaw.  Rule 99 of this Court’s Rules provides as follows:

“(1) An appeal shall not abate on the death of the appellant or the respondent but the Court shall, on the application of any interested person, cause the legal representative of the deceased to be made a party in place of the deceased.

(2)  If no application is made under sub-rule (1) within twelve months from the date of death of the appellant or respondent, the appeal shall abate.

(3) The person claiming to be the legal representative of a deceased party to an appeal may apply for an order to revive an appeal which has abated; and, if it is proved that the legal representative was prevented by sufficient cause from continuing the appeal, the court shall revive the appeal upon such terms as to costs or otherwise as it deems fit.”

5)From the record, the appellant died on 6th September, 2019. Over twelve (12) months have lapsed and no substitution has been sought nor leave or extension of time sought. In the circumstances, Civil Appeal No. 23 of 2018abated at the end of twelve months of the death of the deceased appellant in accordance with Rule 99(2) of this Court’s Rules. Accordingly, we allow the application with costs to the respondent.

Dated and delivered at Nairobi this 29thday of January, 2021.

W. KARANJA

…………………….………

JUDGE OF APPEAL

S. GATEMBU KAIRU (FCIArb)

…………………………………

JUDGE OF APPEAL

J. MOHAMMED

………………….…………

JUDGE OF APPEAL

I certify that this is a true

copy of the original.

Signed

DEPUTY REGISTRAR