Kurutu v Simiyu & another

Administration ad litem with their father’s advocates, the rm of Walker Kontos & Co. Advocates; that on 16th April 2024, the said rm prepared and sent to the applicants an application for substitution of the deceased appellant with his legal representatives; that they promptly signed the application and returned it to Walker Kontos on 18th April 2024, expecting that it would be led in this Court without delay. 4. The applicants aver that it was therefore surprising and deeply concerning to them when, on 11th July 2025, they discovered, through inquiry with Walker Kontos Advocates, that the substitution application had never been led. They aver that on 15th August 2025, they requested the rm of Walker Kontos Advocates to hand over their late father’s le to enable them pursue the appeal, and they instructed their present advocates, Wanjiku & Wanjiku LLP, to take over the conduct of the appeal. 5. The applicants have led submissions dated 24th October 2025 in support of their application, which is not opposed, the respondent not having led any response to the application. 6. The appellant in this matter died on 13th September 2023. As no application for his substitution was led within twelve (12) months of his death as required under rule 102(2) of the Rules of this Court, the appeal is deemed to have abated on 12th September 2024. 7. Under rule 102(3), a person claiming to be the legal representative of a deceased party to an appeal may apply for an order to revive an appeal which has abated. The rule requires that the applicant proves that he was prevented by sucient cause from continuing the appeal, the Court shall revive the appeal upon such terms as to costs or otherwise as it deems t. In this case, the applicants aver that the abatement resulted solely from the oversight on the part of the deceased’s advocates, the rm of Walker Kontos, and not from any inaction on their part. 8. They assert that they have acted with all reasonable diligence in the circumstances, including obtaining the letters of administration ad litem and pursuing the matter through new counsel as soon as the oversight became apparent. They further assert that in the interests of justice, the appeal ought to be heard on its merits rather than be lost by procedural default. They therefore pray that the appeal be revived and they, as legal representatives of the estate, be substituted in place of their deceased father. 9. In Njoroge & another v Kamau (Deceased) & another [2024] KECA 806 (KLR), this Court (Korir, JA) observed that: “ A prayer for revival of an appeal which has abated cannot be allowed as a matter of course or as of right. An applicant seeking an order of revival must demonstrate to the satisfaction of the court that he or she was prevented by sucient cause from making an application for substitution before the abatement of the appeal.” 10. I have considered the application and the submissions buy the applicants. I have also noted the explanation advanced by the applicants for the failure to seek substitution of the appellant in time, leading to the abatement of the appeal. They aver that they had applied for letters of administration ad litem for the purpose of pursuing their father’s appeal; an application for substitution had been prepared and forwarded to them by the rm of Walker Kontos a few months after the death of the deceased appellant; they had returned the application, duly signed, to the advocates; they subsequently discovered that the application had not been led, leading to abatement of the appeal; and they had then instructed their current advocates, who led the present application. 11. In the circumstances, I am satised that the applicants were “prevented by sucient cause” from applying for substitution within the 12‐month period prescribed by the rule, leading to abatement of the appeal. I therefore nd that the application dated 11th August 2025 is merited, and I hereby allow it, https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1676/eng@2026-09-11 2

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and the appeal is hereby revived. The applicants, Simon Njoroge Muturi and Isaac Mbuthia Muturi, are substituted in place of the deceased appellant, Joseph Muturi Kurutu, as appellants in Civil Appeal No. E719 of 2021. 12. There shall be no order as to costs. DATED AND DELIVERED AT NAIROBI THIS 11TH DAY OF SEPTEMBER, 2026. MUMBI NGUGI ………………………………. JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR _ https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1676/eng@2026-09-11 3

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