Saikwa (Suing as the Personal Representative of the Estate of Andrew Kisa Saikwa) v Vomorono Limited & 7 others (Civil Appeal (Application) E303 of 2021) [2026] KECA 493 (KLR)
The bottom line
#Kenya's Court of Appeal revived a dead appeal and allowed the deceased appellant's estate to take over, confirming abated appeals can be revived with good reasons.
What this practically means
#Executive summary
#Key legal issues
#Sufficient cause for failure to seek substitution before abatement
The applicants showed sufficient cause: the 4th applicant's earlier substitution application was filed before abatement, and delay thereafter was due to its dismissal for non-joinder and subsequent disagreements among the administrators.
The court held the discretion to revive is not unfettered but must be exercised judiciously. The 4th applicant had acted promptly by filing the February 2025 application before abatement, acting on a mistaken belief she could apply alone. The roughly four-month delay in the present application was explained by the dismissal for non-joinder and internal disagreements over distribution of the estate. The delay was not found inordinate and no bad faith or negligence was shown.
Res judicata
The objection failed because the earlier application was dismissed for non-joinder, not on the merits.
The court held that res judicata requires that the matter have been heard and determined on the merits. The 4th applicant's application dated 14th February 2025 was dismissed for non-joinder of the other administrators, and the court expressly granted liberty to file a fresh joint application. The present application for revival and substitution had therefore never been heard and determined on the merits.
Abuse of process / effect of declaration of abatement
The full bench's 29th October 2025 order merely declared the appeal abated and does not bar an application for revival.
The respondents argued the entire appeal had been determined by a full bench ruling on 29th October 2025. The court perused that order and found it merely declared the appeal to have abated following the appellant's death and lack of substitution. Since Rule 102(3) expressly allows revival of an abated appeal, the declaration of abatement is not an impediment. The objection was therefore unmerited.
Substitution of the applicants as appellants
The applicants, as administrators of the deceased's estate on whose behalf the appeal was brought, are the proper parties to be substituted in place of the deceased appellant.
The court found the applicants demonstrated that they hold a grant of probate dated 6th December 2024 in respect of the estate of the deceased (Andrew Kisa Saikwa), on whose behalf the deceased appellant had instituted the appeal. Being the legal representatives of that estate, they are the proper parties for substitution, and the court found merit in that limb of the application.
Legal principles established
#- An appeal shall not abate on the death of a party, but abates if no application for substitution of the legal representative is made within twelve months of death; the court may revive an abated appeal where the legal representative was prevented by sufficient cause from continuing the appeal.
- An order declaring that an appeal has abated is not a bar to an application for its revival.
- A dismissal for non-joinder of parties, and not on the merits, does not give rise to res judicata.
- Before reviving an abated appeal, the applicant must demonstrate sufficient cause for failure to seek substitution before abatement; the court's power is discretionary and must be exercised judiciously.
Court orders
#- 1.The application dated 24th October 2025 is allowed in terms of prayers 2 and 3 thereof (revival of the abated appeal and substitution of the applicants as appellants)
- 2.Each party shall bear its costs of the application
- On appeal from
- Court of Appeal (single judge, Mumbi Ngugi JA)
- Civil Appeal No. E303 of 2021 (ruling on application dated 14th February 2025)
- Jurisdiction invoked
- Rule 102(3) of the Court of Appeal Rules (revival of an abated appeal), before a single judge under Rule 102(4)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Saikwa (Suing as the Personal Representative of the Estate of Andrew Kisa Saikwa) v Vomorono Limited & 7 others (Civil Appeal (Application) E303 of 2021) [2026] KECA 493 (KLR)", Case Analysis (2026). Civil Appeal No. E303 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/493/eng@2026-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.