A legal bid to strike out a 16-year-old appeal involving a land dispute has been dismissed by the Court of Appeal after judges ruled that a respondent’s death before the filing of the appeal did not invalidate the case.
In a ruling delivered by Justices F. Tuiyott, A. O. Muchelule, and G. V. Odunga, the appellate court found that the attempt to have the appeal marked as abated was “misconceived,” siding with the appellants; Davanis Supplies Limited, David K. Mundui, and Evans Matunda, who are challenging a 2008 High Court ruling by Justice Joyce Khaminwa.
The dispute stems from a civil suit filed by the late Gabriel Mutiso Maanda in 2007 over contested land transactions involving the Commissioner of Lands and the Export Processing Zone Authority.
Maanda passed away on December 27, 2008, shortly after being served with a notice of appeal. However, the full record of appeal was not filed until 2019.
The court clarified that at the time of Maanda’s death, only a notice of intention to appeal existed not a formal appeal. As such, under the now-revoked Court of Appeal Rules, abatement provisions applied only to instituted appeals.
Since the appellants knew the identity of Maanda’s legal representatives and still filed the appeal in the deceased’s name, the judges held that while this was irregular, it did not render the case incompetent.
Citing Rule 85(2), the court ruled that the proper procedure would have been to substitute Maanda’s name with his administrators; Beatrice Sila Mutiso and Amos Kilungya Mutiso without terminating the entire appeal.
The motion to strike out the case was dismissed with costs awarded to the appellants.
