Nyiero v Odongo (Civil Application E099 of 2020) [2026] KECA 153 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a party's death does not kill an appeal — the deceased's legal representative can simply be substituted in their place.
What this practically means
#Executive summary
#Key legal issues
#Whether the death of a party renders an appeal incompetent or abated
No. Under Rules 87(2) and 102(1) of the Court of Appeal Rules, 2022, an appeal does not abate or become incompetent merely because a party died; the legal representative may be substituted on application.
The court applied Rule 87(2), which deems an appeal competent despite the respondent's death at institution, and Rule 102(1), which provides that an appeal shall not abate on death. Both rules permit the court, on application by an interested person, to cause the legal representative to be made a party in place of the deceased. The respondent's own subsequent appeal naming the widow confirmed that the estate could be joined.
Whether substitution should be granted despite the absence of the contested judgment
Yes. Failure to attach the contested judgment was not fatal, because the respondent's own pending appeal against the same judgment confirmed the cause of action's relevance to the estate, and no prejudice would arise.
The court noted that neither party attached the contested judgment, which would have helped determine whether the cause of action survived the deceased. However, since the respondent confirmed he had filed another appeal against the same judgment naming the widow as administrator, the argument that no appeal existed failed. The court found no prejudice in allowing the substitution and allowed the application, with costs to abide the appeal.
Legal principles established
#- An appeal is not incompetent merely because the respondent was dead when it was instituted; the court may substitute the deceased's legal representative on application
- An appeal does not abate on the death of an appellant or respondent; the legal representative may be joined in place of the deceased
Court orders
#- 1.The Notice of Motion dated 30th July 2025 is allowed, effecting substitution of the deceased respondent with his legal representative
- 2.Costs of the application to abide the appeal
- On appeal from
- High Court of Kenya at Kisumu
- Succession Cause No. 649 of 2011
- Jurisdiction invoked
- Rules 44 and 87 of the Court of Appeal Rules, 2022 (with Rule 102(1))
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyiero v Odongo (Civil Application E099 of 2020) [2026] KECA 153 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/153/eng@2026-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.