Odongo & 3 others v National Irrigation Authority & 5 others

Odongo, now deceased, and an order for the substitution of the applicant as the legal representative of the deceased's estate. The motion is supported by the grounds on its face and which are reiterated in the applicant’s supporting adavit. 2. Basically, the applicant states the deceased was a party to the appeal but had since died. Having not been substituted as required within the timelines set out in the rules of this Court, the appeal has abated as against her by operation of law. However, the applicant had since obtained a limited grant of letters of administration Ad litem on behalf of the deceased’s estate and thus prays that the appeal be revived so that the estate of the deceased may be aorded a hearing on the substantive issues raised in the appeal. 3. There was no response led by the other the parties to the application, though there is ample evidence of service of the application on all of them. Nor did they le written submissions as directed by the Deputy Registrar of this Court. The applicant on the other hand did le the submissions which I have read and considered. 4. It is common ground that the 5th respondent passed away on 2nd May 2025. By virtue of Rule 102(1) of the Court of Appeal Rules, she ought to have been substituted in the appeal within one year of her passing, failing which the appeal against her would automatically abate by operation of law. It is equally common ground that when the issue was raised during the scheduled plenary hearing of the appeal on 6th May 2026, it was adjourned and the estate of the deceased was granted a 90 window within which an application for revival of the now abated appeal and substitution of the deceased should be made. Pursuant to that window, the applicant has brought the instant application. He pleads with me to exercise my unfettered discretion and allow it. 5. It appears that the delay in bringing this application was occasioned solely by the nuanced circumstances, given that the applicant is already a party to the appeal as an appellant but also holds, a Limited Grant of Letters of Administration Ad Litem for the estate of the deceased which is a prerequisite before any person can be appointed to competently represent a deceased persons' estate in a suit. 6. Whereas it is conceded that the deceased is a necessary and indispensable party to these proceedings, having participated in the trial as a party, and a victim of the trial court's adverse orders in the impugned judgement and decree, the estate of the deceased has thus a direct and substantial interest in the outcome of the appeal. Accordingly, it would be contrary to the overriding objective of this Court to determine the appeal without aording the estate an opportunity to be heard, the applicant having obtained a Limited Grant of Letters of Administration Ad Litem which he exhibited in these proceedings. 7. I entertain no doubts at all that I have jurisdiction to revive an abated appeal where a legal representative has taken prompt steps to secure legal capacity and move the court for substitution just like the applicant has done in the circumstances of this application and more so when there is no objection by any parties to the application though served with it. It is trite that in applications to revive an abated appeal, the court exercises judicial discretion guided by equity. I do not think that a short delay or procedural complications should be held against an applicant. 8. For the foregoing reasons, I am inclined to allow the application in terms of prayers 2 and 3 of the application. Costs shall be in the appeal. DATED AND DELIVERED AT KISUMU THIS 16TH DAY OF SEPTEMBER, 2026. ASIKE-MAKHANDIA …………….……..……………… https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1686/eng@2026-09-16 2

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JUDGE OF APPEAL I certify that this is a true copy of the original Signed https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1686/eng@2026-09-16 3

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