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Court of AppealAllowedCivil Appeal No. E245 of 2021· [2026] KECA 189 (KLR)

Moses Mandu Mafumbula & 17 others v The Attorney General

Court of Appeal
30 January 2026
875 words in judgment
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AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal revived an appeal that had lapsed when a party died, allowing his family to take his place and continue the case.

What this practically means

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Executive summary

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This is a single-judge decision of the Court of Appeal at Kisumu (H. A. Omondi, JA) on a Notice of Motion dated 25th June 2025 in Civil Appeal No. E245 of 2021, an appeal against the judgment of the High Court at Bungoma (S. N. Riechi, J.) of 4th August 2021 in Petition No. 15 of 2014 (consolidated with numerous other petitions). The first appellant, Moses Mandu Mafumbula, died on 3rd August 2024 without any substitution being effected, and the twelve-month statutory period for substitution under rule 102(2) of the Court of Appeal Rules lapsed, so the appeal as it related to him abated. The administrators of his estate, Ridah Nasike Sirael (the widow) and Sarah Mutiembu (the daughter), holding a grant of letters of administration, applied for substitution so that the appeal - which contests the quantum of damages awarded by the High Court - could proceed alongside the other consolidated appeals. The respondent filed no response. The court held that although the appeal had abated, the applicants acted swiftly, moving the court in June 2025 before the abatement took effect in August 2025, so there was no delay; they had demonstrated their legal status in relation to the estate; and sections 3A and 3B of the Appellate Jurisdiction Act required the court to be guided by the interests of justice and fairness. Drawing on CKM v ENM, Njoroge v Kamau (Deceased), Issa Masudi Mwabumba and Elizabeth Wanjiru Njenga - in which abated appeals were revived after comparable or longer delays - the court allowed the application, ordered substitution of the deceased first appellant with Ridah Nasike Sirael, and directed that costs be in the cause. The substantive appeal against quantum remains for hearing on its merits.

Key legal issues

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01

Abatement of appeal upon death of an appellant and failure to substitute within twelve months

Holding

The appeal as it related to the deceased 1st appellant abated because no substitution was effected within the twelve-month period prescribed by rule 102(2) of the Court of Appeal Rules, and the applicants admitted the lapse.

Reasoning

The court applied rule 102(1) and (2): an appeal does not abate on death, but abates automatically if no application for substitution is made within twelve months of death. The deceased died on 3rd August 2024; the statutory period lapsed without substitution, so the appeal abated in August 2025. The applicants conceded this. The finding was a necessary predicate to invoking the revival jurisdiction under rule 102(3).

p. 3
02

Revival of an abated appeal and substitution of the deceased appellant's legal representatives

Holding

Having abated, the appeal was revived by substituting the administrators of the estate, as the applicants demonstrated their legal status and showed sufficient cause for the lapse.

Reasoning

The court drew on its own precedent (CKM v ENM; Njoroge & Another v Kamau (Deceased)) and on Issa Masudi Mwabumba and Elizabeth Wanjiru Njenga, in which appeals abated for longer periods were revived. The applicants moved the court in June 2025, before the suit abated in August 2025, so there was no inordinate delay. They annexed a grant of letters of administration and a death certificate, proving their status as legal representatives. Sections 3A and 3B of the Appellate Jurisdiction Act required the court to be guided by the interests of justice and fairness.

p. 3
03

Need to hear a deceased party's estate through its legal representative

Holding

Natural justice and fair play require that where a party dies and the cause of action survives, the estate be heard through its legal representative before a decision is rendered.

Reasoning

The court adopted the dictum in CKM v ENM that any decision made against a deceased party's estate can only be satisfied by the legal representative. This principle grounded the necessity of substitution: without it, the deceased appellant's interest in the appeal - which contests the quantum of damages awarded by the High Court - could not be ventilated, and any resulting decision would be unenforceable against the estate.

p. 3

Legal principles established

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  • An appeal does not abate on the death of a party, but where no application to substitute the legal representative is made within twelve months of the death, the appeal abates; the court may nonetheless revive an abated appeal on proof that the legal representative was prevented by sufficient cause from continuing it.
  • Where a party to a suit dies and the cause of action survives, the estate must be heard through its legal representative before a decision is rendered, since any decision against the estate can only be satisfied by the legal representative.
  • Courts are guided by the interests of justice and fairness under sections 3A and 3B of the Appellate Jurisdiction Act in facilitating just, expeditious and proportionate resolution of appeals, including in revival of abated appeals.

Court orders

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  1. 1.The Notice of Motion dated 25th June 2025 is allowed
  2. 2.The late Moses Mandu Mafumbula shall be substituted with Ridah Nasike Sirael as the 1st appellant
  3. 3.Costs shall be in the cause
On appeal from
High Court of Kenya at Bungoma
Petition No. 15 of 2014 (consolidated with 17/2014, 18/2014, 20/2014, 21/2014, 22/2014, 23/2014, 24/2014, 25/2014, 26/2014, 27/2014, 28/2014, 29/2014, 30/2014, 9/2016, 10/2016, 11/2016 & 12/2016)
Jurisdiction invoked
Rule 102 of the Court of Appeal Rules (revival of abated appeal), together with sections 3A and 3B of the Appellate Jurisdiction Act as invoked by the applicants

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Moses Mandu Mafumbula & 17 others v The Attorney General", Case Analysis (2026). Civil Appeal No. E245 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/189/eng@2026-01-30

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