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Court of AppealAllowedCivil Appeal (Application) 38 of 2016· [2022] KECA 1158 (KLR)

In re Estate of the Late Daniel Toroitich Arap Moi (Deceased)

Court of Appeal
18 October 2022
LKL. Kimaru
493 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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When a party to a Kenyan appeal dies, the case pauses until their legal representative formally takes their place — here, the Court allowed that substitution.

What this practically means

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Executive summary

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This short ruling by the Court of Appeal at Nyeri (Kimaru, JA) dealt with the substitution of a deceased party in a pending appeal, Civil Appeal No. 38 of 2016 (Joseph Lekamario & Others v African Wildlife Foundation & 2 Others). The appeal had been scheduled for hearing on 16th June 2020, but the Court was informed that the 2nd Respondent, Daniel Toroitich Arap Moi, had died, meaning the appeal could not proceed without his substitution. The Court adjourned the matter and directed the deceased's family to file a substitution application with dispatch. Pursuant to those directions, an application dated 4th February 2021 was brought under the then Rule 99(3) of the Court of Appeal Rules, 2010 (now Rule 102(3) of the Court of Appeal Rules, 2022), seeking to substitute the deceased 2nd Respondent with his legal representative, Zehrabanu Janmohamed S.C., who held a grant of probate with written will issued in Nairobi High Court Succession Cause No. 405 of 2020 on 9th October 2020. The application was unopposed; indeed, the advocates for the parties filed a consent on 21st July 2021, lodged on 17th August 2021. The Court accordingly allowed the substitution, permitting Zehrabanu Janmohamed S.C. to replace the deceased as 2nd Respondent, and made no order as to costs. The ruling is procedural and unopposed, and establishes no contested legal precedent beyond confirming that a pending appeal cannot proceed where a party has died until substitution by a legal representative is effected.

Key legal issues

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Substitution of a deceased respondent in a pending appeal

Holding

The court allowed the substitution of the deceased 2nd Respondent by his legal representative holding a grant of probate with written will, the application being unopposed and supported by a consent filed by all parties' advocates.

Reasoning

The appeal had been adjourned on 16th June 2020 upon news of the 2nd Respondent's death, with directions that his family file a substitution application. Pursuant to those directions, an application under Rule 99(3) was filed on 4th February 2021, annexing a grant of probate with written will issued in Nairobi High Court Succession Cause No. 405 of 2020. The application was unopposed and a consent by the advocates was filed on 17th August 2021, warranting allowance of the substitution without costs.

p. 2

Legal principles established

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  • Where a party to a pending appeal dies, the appeal cannot proceed without substitution of the deceased party by their legal representative, and the court may allow such substitution on an unopposed application, including by consent of the parties.

Court orders

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  1. 1.Zehrabanu Janmohamed S.C. allowed to substitute Daniel Toroitich Arap Moi (deceased) as the 2nd Respondent in the appeal
  2. 2.No orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(d)
  • Appellate Jurisdiction ActSections 3A and 3B
  • Court of Appeal Rules, 2010Rule 51(4)
  • Court of Appeal Rules, 2010Rule 99(3)
  • Court of Appeal Rules, 2022Rule 102(3)
Jurisdiction invoked
Article 159(d) of the Constitution of Kenya, 2010; Sections 3A and 3B of the Appellate Jurisdiction Act; Rules 51(4) and 99(3) of the Court of Appeal Rules, 2010

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 the Late Daniel Toroitich Arap Moi (Deceased)", Case Analysis (2022). Civil Appeal (Application) 38 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1158/eng@2022-10-18

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