CHANDULAL BHIMJI RACH v DR. PAUL TITUS OBWAKA [2007] KECA 306 (KLR)

Facts

The High Court of Kenya delivered a judgment on 31st May, 2000 in H.C.C.C. NO. 2389 OF 1995. The judgment was in favor of the Plaintiff (Dr. Titus Obwaka) for the sum of Shs.555,000/- with interest and costs awarded to the plaintiff. The balance of the claim was to proceed to trial in the normal manner. The Plaintiff (Dr. Titus Obwaka) died on 6th March, 2004.

Issues

1. Whether the Plaintiff's (Dr. Titus Obwaka) death caused the suit to abate.
2. Whether the Plaintiff's (Dr. Titus Obwaka) death rendered the appeal incompetent.
3. Whether the Plaintiff's (Dr. Titus Obwaka) death allowed the substitution of his legal representatives as the Respondent in the appeal.

Reasoning

The Court ruled that an appeal can only abate by virtue of rule 96 (2) after the appeal has been instituted. Since the appeal was not yet instituted, the appeal was not bound to abate consequent upon no application having been made under rule 96 (1) to cause the legal representative of the deceased to be made a party in place of the deceased within 12 months from the date of death of the appellant/ respondent.

Outcome

The application for extension of time to file and serve a record of appeal was dismissed with costs. The application for substitution of the deceased's legal representatives as the Respondent was allowed.

Authorities cited