Susan Khisa v Peter Wanyama Kerre & Beatrice Nakhumicha Lumunyasi [2019] KEELC 3709 (KLR) | Abatement Of Appeal | Esheria

Susan Khisa v Peter Wanyama Kerre & Beatrice Nakhumicha Lumunyasi [2019] KEELC 3709 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT BUNGOMA

CIVIL APPEAL NO. 02 OF 2019

SUSAN KHISA...................................................................APPELLANT

VERSUS

PETER WANYAMA KERRE ............................... 1ST RESPONDENT

BEATRICE NAKHUMICHA LUMUNYASI ......2ND RESPONDENT

R U L I N G

This is in respect to the Respondents’ Notice of Motion dated 30th April 2018 seeking the following orders:-

1.  That this Court orders that the appeal herein has abated.

2. That consequent to the grant of prayer (1) above, the costs of this application and the appeal be recovered from the Estate of the deceased Appellant.

The application is premised on the grounds set out therein and also supported by the affidavit of PETER WANYAMA KERRE the 1st Respondent herein.  The gravamen of the application is that the Appellant filed this appeal on 12th May 2014 having been dissatisfied by the Judgment of the Honourable Magistrate delivered on 7th May 2014 in BUNGOMA CMCC NO. 423 OF 2002.  That the Appellant died on 30th May 2015 and has not been substituted to-date and therefore this appeal has abated.

There is no response filed to the application although M/S OMUNDI BWONCHIRI ADVOCATES for the Appellant were served.  The application is therefore not opposed.

While no evidence has been placed before me in the nature of a Certificate of Death to confirm the averment by the Respondent that the Appellant passed away on 30th May 2015 one year after this appeal had been filed, that averment is not rebutted.  The Court will therefore conclude that indeed the Appellant passed away on 30th may 2015.  This appeal has therefore abated.

On the issue of costs, that is a discretionary matter.  I see no reason to burden the Appellant’s Estate with costs.

Ultimately therefore, I grant the Orders sought in the Respondents Notice of Motion dated 30th April 2018 but with no orders as to costs.

Boaz N. Olao.

JUDGE

25th April 2019.

Ruling dated, delivered and signed in Open Court this 25th day of April 2019 at Bungoma.

Mr. Murunga  for Respondent - present

Appellant - absent

Boaz N. Olao.

JUDGE

25th April 2019.