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Court of AppealDismissedCivil Application (Nairobi) arising from appeal against the ruling of Kimingoi J of 28th January 2021· [2025] KECA 1201 (KLR)

Njoroge v Mbote (Civil Appeal (Application) E321 of 2012) [2025] KECA 1201 (KLR)

Court of Appeal of Kenya
4 July 2025
FLF. Sicha le
1,411 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to revive an appeal abated by a party's death because the underlying land suit had already been dismissed and never reinstated.

What this practically means

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Executive summary

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By a Motion on Notice dated 13th March 2025 under Sections 3, 3A and 3B of the Appellate Jurisdiction Act and Rule 102 of the Court of Appeal Rules 2022, General H.W Njoroge, the applicant, sought revival of his appeal and substitution of the deceased original respondent, William Njoroge Mbote, with the administrators of his estate, Emily Wanjiru Mbote and Jacqueline Ann Njeri Mbote. The dispute originated in Milimani ELC No. 52 of 2015 over breach of a sale agreement for L.R 1008/39. The respondent died on 11th December 2018; the suit was dismissed for want of prosecution on 9th December 2019, two days after it had abated; and the applicant's application to set aside the dismissal was dismissed by Komingoi J on 28th January 2021, prompting this appeal. The administrators opposed, contending the suit had abated and was never reinstated, leaving nothing to litigate. Sicha le JA, sitting as a Single Judge under Rule 102(4), reviewed the text of Rule 102 and the undisputed chronology. Holding that the underlying suit had already abated on 11th December 2019, was dismissed on 9th December 2019, and was never reinstated, the court found the legal representatives could not be enjoined in a suit that had been dismissed and abated. The motion was dismissed with no order as to costs on 4th July 2025. This decision binds the subordinate courts and the parties on the operation of Rule 102 in these circumstances.

Key legal issues

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Whether an abated appeal, tied to an underlying suit that had been dismissed and never reinstated, could be revived and the deceased respondent substituted

Holding

The application for revival and substitution fails because the underlying suit had abated on 11th December 2019, been dismissed on 9th December 2019, and never reinstated; the legal representatives cannot be enjoined in a suit that no longer exists

Reasoning

The court recited the undisputed chronology: the suit property dispute began as Milimani ELC No. 52 of 2015; the respondent died on 11th December 2018; the suit was dismissed on 9th December 2019, two days after abatement; the setting-aside application was dismissed by Komingoi J on 28th January 2021, giving rise to this appeal; and the administrators were only appointed on 13th August 2024 with a confirmed grant on 4th March 2025. Because the underlying suit was dismissed and abated and was never reinstated, there was no live suit into which the legal representatives could be substituted, so revival could not issue.

p. 4

Legal principles established

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  • Under Rule 102 of the Court of Appeal Rules 2022, an appeal does not abate on death but abates if no substitution application is made within twelve months; revival is only available where the legal representative was prevented by sufficient cause from continuing the appeal, and legal representatives cannot be enjoined in a suit that has already been dismissed and abated and never reinstated.

Court orders

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  1. 1.The applicant's motion dated 13th March 2025 is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Appellate Jurisdiction ActSections 3, 3A and 3B
  • Court of Appeal Rules 2022Rule 102 (including sub-rules 1-4 and Rule 102(3))

Cases cited (1)

  • Issa Masudi Mwabumba v Alice Kavenya Mutunga & 4 Others
    [2012] KECA 248(KLR)
On appeal from
Environment and Land Court, Milimani
Milimani ELC No. 52 of 2015
Jurisdiction invoked
Sections 3, 3A and 3B of the Appellate Jurisdiction Act and Rule 102 of the Court of Appeal Rules 2022, with the application heard by a Single Judge under Rule 102(4)

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, "Njoroge v Mbote (Civil Appeal (Application) E321 of 2012) [2025] KECA 1201 (KLR)", Case Analysis (2025). Civil Application (Nairobi) arising from appeal against the ruling of Kimingoi J of 28th January 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1201/eng@2025-07-04

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