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Court of AppealDismissedNotice of Motion dated 10th August 2025· [2025] KECA 1696 (KLR)

In Re Estate of Hussein Mwanza Etokho (Deceased) (Civil Appeal (Application) 36 of 2016) [2025] KECA 1696 (KLR)

Court of Appeal of Kenya
21 October 2025
665 words in judgment
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The bottom line

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The Court of Appeal dismissed an attempt to substitute parties in an appeal that had already automatically died after one year, ruling that the appeal must first be revived.

What this practically means

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Executive summary

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This is a single-judge in-chamber ruling of the Court of Appeal at Kisumu delivered by Asike-Makhandia, JA on 21 October 2025. The applicants, described as legal personal representatives of the deceased respondent, Hussein Mwanza Etokho (who died on 4 December 2023), sought leave to enlarge time and to be substituted in his place in a pending appeal, citing family negotiations over administration of a polygamous estate and financial constraints as the cause of delay, and noting a pending bill of costs against the respondent. The respondent opposed, arguing there is no automatic right of substitution in a matter that has abated and that the correct sequence is revival first. The court held that under Rule 102(2) of the Court of Appeal Rules an appeal abates automatically by operation of law where no substitution is made within one year of a party's death, following Sweilem Gheithan and Rebecca Mijide Mungole. Abatement is substantive and not dependent on judicial pronouncement (Mbaya Ngulwa; Soni v Mohan Dairy), and courts lack jurisdiction over an abated suit unless it is revived. Because the applicants' notice of motion contained no prayer for revival, the application was fatally defective. The application was dismissed with costs to the respondent, with liberty to seek revival of the abated appeal first.

Key legal issues

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01

Effect of failure to substitute a deceased party within one year

Holding

The appeal abates automatically by operation of law; substitution thereafter cannot be granted without first reviving the appeal

Reasoning

Rule 102(2) provides that where a party to an appeal dies and no substitution is made within one year, the appeal abates against the surviving party. The court relied on its prior decisions establishing that abatement occurs only after one year of no substitution, and that the sole remedy thereafter is an application for revival if sufficient cause is shown under Rule 102(3). Since the applicants sought substitution alone without a revival prayer, the application was fatally defective.

p. 2
02

Nature of abatement - procedural or substantive

Holding

Abatement is a matter of substantive law once the statutory period lapses and occurs by operation of law, not by judicial pronouncement

Reasoning

Relying on Mbaya Ngulwa v Kenya Power and Soni v Mohan Dairy, the court held that abatement takes effect automatically upon lapse of the statutory period and does not require a judicial declaration. Consequently a court has no jurisdiction to entertain proceedings in an abated appeal, including an application for substitution, unless the appeal is first revived.

p. 2

Legal principles established

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  • Where a party to an appeal dies and no substitution is made within one year, the appeal abates automatically by operation of law, and the only remedy is an application for revival under Rule 102(3); courts have no jurisdiction to proceed with an abated suit unless it is revived

Court orders

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  1. 1.The application dated 10th August 2025 is dismissed with costs to the respondent
  2. 2.The applicants are at liberty to seek revival of the abated appeal first

Authorities

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Legislation

  • Court of Appeal RulesRule 102(2)
  • Court of Appeal RulesRule 102(3)

Cases cited (4)

  • Sweilem Gheithan v Commissioner of Lands & 5 others
    [2015] eKLR
  • Rebecca Mijide Mungole & another v Kenya Power & Lighting Company Limited & 2 others
    [2017] eKLR
  • Mbaya Ngulwa v Kenya Power Lighting Company Limited
    [2018] eKLR
  • Soni v Mohan Dairy
    [1963] EA 98
Jurisdiction invoked
Rule 102(2) and 102(3) of the Court of Appeal Rules (in-chamber application for extension of time and substitution)

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 Hussein Mwanza Etokho (Deceased) (Civil Appeal (Application) 36 of 2016) [2025] KECA 1696 (KLR)", Case Analysis (2025). Notice of Motion dated 10th August 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1696/eng@2025-10-21

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