Muriithi & another v Mureithi & another (Civil Appeal E029 of 2024) [2026] KECA 1152 (KLR)
The bottom line
#A Kenyan court ruled that an appeal does not die when one party passes away, so long as the dispute can continue against the surviving parties.
What this practically means
#Executive summary
#Key legal issues
#Whether the appeal abated upon the death of the 1st Respondent
The suit abated only against the deceased 1st Respondent, since more than one year elapsed without substitution, but the appeal survives against the living 2nd Respondent because the cause of action continues
The court applied Order 24 Rule 4 of the Civil Procedure Rules: where one of two or more defendants dies and the cause of action survives against the survivor, the court proceeds against the survivor. The 1st Respondent died on October 29, 2022 and no personal representative was appointed within one year, so the appeal abated as against her estate alone. However, the appeal arises from an eviction application by the 2nd Respondent, who is alive and retains an interest in the suit land, so the cause of action survives and the appeal may proceed against him.
Whether the preliminary objection was competent
The objection, though framed as a point of law, was determined as a matter engaging the abatement provisions; the court treated the capacity question as a fundamental point of law capable of preliminary determination
Guided by Mukisa Biscuit and Oraro v Mbaja, the court held that a preliminary objection must be a point of law not blurred with facts. It found the capacity of a party to be subject to proceedings to be a fundamental point of law. The objection ultimately failed on the law of abatement, since the death of one of two respondents did not extinguish the appeal.
Legal principles established
#- The death of a plaintiff or defendant does not cause a suit to abate where the cause of action survives or continues against a surviving party; abatement operates only against the deceased party where no application to join the legal representative is made within one year
- A preliminary objection must rest solely on a point of law and cannot be blurred with factual matters requiring proof or investigation
Court orders
#- 1.The preliminary objection dated September 17, 2025 is dismissed with costs
- On appeal from
- Chief Magistrate's Court (Environment and Land), Nyeri
- Nyeri CM ELC 201 of 2018
- Jurisdiction invoked
- Not expressly stated; the court determined a preliminary objection in an appeal from the trial court, with jurisdiction contested on the basis of Order 24 of the Civil Procedure Rules and Section 82(a) of the Law of Succession Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muriithi & another v Mureithi & another (Civil Appeal E029 of 2024) [2026] KECA 1152 (KLR)", Case Analysis (2026). Civil Appeal No E029 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1152/eng@2026-06-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.