Simon Ochieng Othiambo v Joshua Arego Obuor
The bottom line
#The Court of Appeal refused to let a man appeal six months late against a deceased respondent, stressing that unexplained delay and suing a dead person doom a case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant should be granted leave to appeal out of time against the High Court ruling of 30 April 2025
- 2.Whether the application is incompetent for having been brought against a deceased respondent
- 3.Whether the intended appeal has chances of success
Key legal issues
#Whether the delay of about six months in moving the Court was adequately explained
The delay was not adequately explained; the applicant claimed he instructed an advocate to appeal but disclosed no particulars of the advocate or when instructions were given, and he failed to use the 30-day window granted by the High Court.
The ruling was delivered on 30 April 2025 with a 30-day appeal window. The applicant moved the Court on 18 November 2025, some six months later. His explanation - that an advocate was instructed but did not file - lacked particulars of the advocate and the date of instruction, and his layperson status did not excuse him since he was informed of the appeal right.
Whether the application is incompetent for being brought against a deceased respondent
The respondent died in 1990 per the death certificate before the Court; the applicant, whose residence is allegedly within the subject property, must have known he was suing a deceased person, rendering the intended legal journey incompetent.
A copy of the death certificate showed the respondent died in 1990. The applicant's claim of residence within the subject property meant he knew or ought to have known of the death. Continuing proceedings against a deceased person cannot be competent, casting doubt on the intended appeal's chances of success.
Legal principles established
#- The power to extend time under Rule 4 of the Court of Appeal Rules is discretionary and unfettered, and is exercised considering the length of delay, reasons for the delay and possibly the chances of the intended appeal succeeding.
- Proceedings brought against a deceased person are incompetent; a litigant who knows he is suing a deceased person cannot maintain a competent legal journey.
Court orders
#- 1.The Motion dated 5th November 2025 is dismissed with costs to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya at Kakamega
- Kakamega High Court Succession Cause No. 80 of 1986
- Jurisdiction invoked
- Section 3A & B of the Appellate Jurisdiction Act and Rules 4, 41 and 42 of the Court of Appeal Rules, 2022
Relief refused
#Leave to appeal out of time against the ruling of 30 April 2025
Inordinate and unexplained delay; the intended appeal against a deceased person is incompetent and doubtful of success
Costs
The Motion dated 5th November 2025 is found without merit and is dismissed with costs to the Respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
this Court held that the power is discretionary and unfettered, and the factors the Court should consider before exercising the discretion are the length of delay, the reasons for the delay and possibly, the chances of an intended appeal succeeding.
It does not, therefore, matter that the applicant is a layperson. The applicant did not take advantage of the window granted by the High Court
The Motion dated 5th November 2025 is found without merit and is dismissed with costs to the Respondent.
Issues in the judgment
#Signature block inconsistency: coram names a Judge of Appeal but the signature reads Deputy Registrar.
Chronological contradiction: the grant was issued to the respondent, yet the respondent died in 1990.
Replying affidavit deponent named James Juma Arego, differing from the respondent Joshua Arego Obuor, without explanation on the record.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Simon Ochieng Othiambo v Joshua Arego Obuor", Case Analysis (2026). Civil Application No. E043 of 2026 (Formerly Kisumu Civil Application No. E153 of 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2027/eng@2026-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.