Abatement of appeal

Reported by Michael Murungi

Civil Procedure ––abatement of appeal – where an appeal has abated on the death of a party - application for revival of an abated appeal by the legal representative of the deceased party – matters the court will consider in deciding the application – Court of Appeal Rules rule 99(3)

Issue:

1. Where an appeal in the Court of Appeal has abated on account of the death of a party to it and later an application is made by the deceased’s legal representative for the revival of the appeal, what matters will the court take into account in deciding whether to allow the application?

The Court of Appeal Rules rule 99 (3) of the

“The person claiming to be the legal representative of the 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 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.”

Held:

1. The principles to guide the court on the exercise of judicial discretion to extend time or to revive a suit are similar and they have been articulated in a long line of authorities;
2. The decision is discretionary;
3. The court will consider the length of delay, the reason for it, the chances of the cause succeeding if the application is granted and the degree of prejudice to the respondent if the application is granted.
4. The Court is also guided by the provisions of Section 3A and 3B of the Appellate Jurisdiction Act  [on the overriding objective] otherwise known as the oxygen principle.  Stemming from the overarching   objectives in the administration of justice the goal is at the end of day, the court attains justice and fairness in the circumstances of each case.  This is the same spirit that is envisaged as the thread that kneads through the Constitution of Kenya, 2010 in particular Article 159 [on Judicial Authority].

Application allowed.