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Court of AppealAllowedCivil Appeal (Application) 97 of 2017· [2022] KECA 1137 (KLR)

In re Estate of Kanampiu Kabiru (Deceased) - Amos Mbae Kanampiu & 2 others v Alice Kathure Justus & another

Court of Appeal
18 October 2022
LKL. Kimaru
359 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that when a party to an appeal dies, their personal representative can be substituted so the case continues.

What this practically means

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Executive summary

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This short ruling of the Court of Appeal at Nyeri (L. Kimaru, JA) determined an application to substitute a deceased respondent in a pending civil appeal. The appeal, Civil Appeal (Application) 97 of 2017, arises from a ruling of the High Court at Chuka (Limo, J.) dated 17th May 2017 in H.C. Misc. Appl. No. 26 of 2016. The respondent, Alice Kathure Justus, died on 15th July 2021 while the appeal was pending. Harriet Muthoni Mugambi, the deceased's daughter, applied to be substituted as respondent, attaching a Limited Grant of Letters of Administration and Litem issued on 10th February 2022 in Meru Chief Magistrate's Court Miscellaneous Succession Cause No. 19 of 2022 declaring her the personal representative of her late mother. She argued that substitution was necessary because the subject matter of the appeal is land. The application was unopposed. Although the applicant cited no rule, the court held that Rule 102(3) of the Court of Appeal Rules 2022 confers discretion to revive an appeal and substitute the personal representative of a deceased party. The court found the application merited and allowed it, permitting Harriet Muthoni Mugambi to substitute the deceased as respondent, with no orders as to costs. The decision is binding on the High Court and subordinate courts in succession and substitution practice under the 2022 Rules.

Key legal issues

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01

Substitution of a deceased respondent in a pending appeal

Holding

The application for substitution was merited and allowed, the subject matter being land and the applicant holding a limited grant as personal representative.

Reasoning

The applicant, daughter of the deceased respondent, held a Limited Grant of Letters of Administration and Litem issued on 10th February 2022 declaring her the personal representative. The appeal concerned land, so substitution was necessary for the appeal to proceed. The application was unopposed and the court invoked its discretion under Rule 102(3) of the Court of Appeal Rules 2022.

p. 2

Legal principles established

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  • The Court of Appeal has discretion under Rule 102(3) of the Court of Appeal Rules 2022 to revive an appeal and substitute the personal representative of a deceased party.

Court orders

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  1. 1.Harriet Muthoni Mugambi is allowed to substitute Alice Kathure Justus (deceased) as the Respondent in this appeal
  2. 2.There shall be no orders as to costs

Authorities

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Legislation

  • Court of Appeal RulesRule 102(3)
On appeal from
High Court of Kenya at Chuka
H.C. Misc. Appl. No. 26 of 2016
Jurisdiction invoked
Rule 102(3) of the Court of Appeal Rules 2022

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "In re Estate of Kanampiu Kabiru (Deceased) - Amos Mbae Kanampiu & 2 others v Alice Kathure Justus & another", Case Analysis (2022). Civil Appeal (Application) 97 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1137/eng@2022-10-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.