John Kimbuku Chege & 2 others v Daniel Kahara Wakigo & 2 others
The bottom line
#Kenya's Court of Appeal struck out a land appeal because the opposing party had died and the suit had legally ceased to exist.
What this practically means
#Executive summary
#Key legal issues
#Effect of abatement of a suit under Order 24 rule 3 of the Civil Procedure Rules
Where an application to substitute a deceased party is not made within one year of death, the suit abates against that party and ceases to exist in law unless revived under Order 24 rule 7. The suit against Wangui abated on 14th June 2000 and was never revived.
Wangui died on 15th June 1999 and was never substituted. By Order 24 rule 3, the suit abated one year later. Order 24 rule 7 permits revival, but no application to revive was made. Authorities cited by the Court establish that an abated suit ceases to exist in law unless and until revived by court order. Consequently no suit capable of determination or appeal existed at the time of the impugned rulings.
Standing of the Public Trustee
The Public Trustee, having been removed as administrator of the deceased's estate on 4th November 2013, had no standing in the appeal.
The Public Trustee once administered the deceased's estate but was removed on 4th November 2013, and the present applicants were appointed administrators in its place. Citing Trouistik Union Insurance v Jane Mbeyu, the Court held that the Public Trustee's mandate had ceased and it therefore had no standing in the appeal.
Timeliness of the striking-out application
The application, filed on 5th February 2020 after service of the notice of appeal on 17th December 2019, was within the 30 days prescribed by rule 84 once the Christmas recess was discounted.
A casual computation suggested the application was out of time, but the Court held the recess period from 21st December to 13th January must be discounted, bringing the filing within the prescribed 30-day window. The competency objection was therefore rejected.
Legal principles established
#- An appeal cannot lie against a party who does not exist in law; where a defendant died and was never substituted, and the suit abated and was never revived, any appeal arising from that suit must fail and the notice of appeal may be struck out.
- A grant of leave to appeal does not revive an abated suit; revival can only be by an express court order made within the prescribed time.
- The Christmas recess (21st December to 13th January) is discounted in computing the 30-day period for applying to strike out a notice of appeal under rule 84.
Court orders
#- 1.The applicants' motion dated 5th February 2020 is allowed
- 2.Wakigo's notice of appeal dated 13th December 2019 is struck out
- 3.Costs of the application are awarded to the applicants
- On appeal from
- Environment & Land Court at Nairobi
- null
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal (ruling on a motion under rules 42 and 84 of the Court of Appeal Rules, 2010 to strike out a notice of appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Kimbuku Chege & 2 others v Daniel Kahara Wakigo & 2 others", Case Analysis (2026). Civil Application No. E031 of 2025 (Motion dated 5th February 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/233/eng@2026-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.