Kinyanjui v Gatihuri & 2 others (Of the Estate of Peter Gatihuri Kiragu - Deceased) (Civil Appeal (Application) 101 of 2019) [2025] KECA 967 (KLR)
The bottom line
#The Court of Appeal refused to decide a substitution request because the applicant ignored directions to serve papers, giving him another chance to comply.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the deceased respondent should be substituted by the proposed respondents under Rule 87(1) of the Court of Appeal Rules, 2022
Key legal issues
#Whether the substitution application could proceed where the applicant had failed to comply with the Court's directions on service and filing of an affidavit of service
The Court declined to determine the substitution application on the merits and instead directed that the matter be relisted on a priority basis with a fresh hearing notice, requiring the applicant to effect service and file an affidavit of service.
The application under Rules 44(1) & 2, 45(a), 49(1) and 87(1) sought substitution of the deceased respondent. A hearing notice served on 28th April 2025 directed the applicant to serve the respondents and file an affidavit of service. On perusal of the record the Single Judge found the applicant had not complied, and rather than dismissing the motion, directed relisting and fresh service, preserving the applicant's opportunity to prosecute the substitution application.
Legal principles established
#- An applicant seeking substitution of a deceased respondent must comply with the Court's directions on service and filing of an affidavit of service before the application can be determined; a party in person is not exempt from such procedural directions.
Court orders
#- 1.The registry is directed to relist the matter on a priority basis
- 2.The registry to issue and serve the applicant with a fresh hearing notice
- 3.The applicant to effect service of the hearing notice on the respondents and file an affidavit of service
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Rule 44(1) & 2, Rule 45(a), Rule 49(1) and Rule 87(1) of the Court of Appeal Rules, 2022 (Single Judge jurisdiction)
Relief refused
#Substitution of Julia Wanjiru Gatihuri, Savio Ndungu Gatihuri and Paul Gathiaka Gatihuri as new respondents in place of the deceased respondent
The application was not determined on the merits; the Court noted the applicant had not complied with directions to serve the hearing notice and file an affidavit of service, and instead directed that the matter be relisted
Costs
No costs order made
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Upon further perusal of the record, the Court noted that the applicant had not complied with directions issued by the Court in the said hearing notice.
In view of the above, the registry is directed to relist the matter on a priority basis and issue and serve the applicant with a fresh hearing notice.
Issues in the judgment
#The judgment refers to the deceased as 'Peter Gatihuri Karigu' in the body while the title reads 'Peter Gatihuri Kiragu' - an internal inconsistency in spelling.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kinyanjui v Gatihuri & 2 others (Of the Estate of Peter Gatihuri Kiragu - Deceased) (Civil Appeal (Application) 101 of 2019) [2025] KECA 967 (KLR)", Case Analysis (2025). Civil Appeal (Application) 101 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/967/eng@2025-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.