Njora v Kahiga (Civil Appeal (Application) 322 of 2019) [2026] KECA 1486 (KLR)

Rule 102(1) provides that an appeal shall not abate on the death of an appellant or respondent, but the court shall, on application by an interested person, cause the legal representative to be made a party in place of the deceased. Rule 102(2) attaches an automatic consequence: if no such application is made within twelve months from the date of death, the appeal abates. The appellant died on 16th July, 2021 and the substitution motion was not brought until 15th August, 2023, well beyond that window, so the appeal stood abated by operation of law.

The court found it undisputed that the appeal had abated by operation of law and that no application to revive it was before the court. It followed that there was no pending appeal into which the legal representative could be substituted or which the applicant could prosecute. Although the applicant argued in the alternative that the court possessed power under rule 102(3) to revive an abated appeal, he had not invoked that rule in the motion; the court observed that he could have brought the two applications simultaneously under rules 102(1) and 102(3) but chose not to do so. The motion was therefore devoid of merit and was dismissed.

Restating what it described as trite law, the court accepted the principle for which the applicant relied on John Muthee Matumo v Thomas Gerishon & 4 Others: a deceased person's estate participates in litigation only through a duly authorized person, whose capacity arises upon issuance of a grant of representation. The applicant had in fact obtained a limited grant of letters of administration ad litem from the High Court at Murang'a, but the principle did not avail him because the obstacle was the abatement of the appeal and the absence of a revival application, not any want of capacity on his part.