Mutavi v Nzivo

the court and led his appeal to challenge the judgment of the ELC (Angote, J.) dated 18th September 2020 relating to land parcel number Mwala/Mango/212 which he alleges he had purchased from the deceased respondent. 5. The appellant avers that he led the record of appeal on 2nd August 2021 and written submissions on 22nd March 2022 which were served on the respondent, but the respondent died on 27th March 2024, before the appeal was heard. He states that his advocates thereafter wrote to the respondent’s advocates requesting particulars of the person authorised to represent the deceased’s estate, but received no response; and that the deceased’s beneciaries have neither obtained a grant of representation nor disclosed the identity of a legal representative. 6. The applicant led written submissions dated 17th July 2025 in which he states that the application has been brought to prevent the appeal from abating. He urges the Court to exercise its discretion in his favour, in the interests of justice. 7. No response or submissions were led on behalf of the respondent despite service on 28th November 2025. 8. I have considered the application and adavit in support, as well as the applicable law. Rule 102 of this Court’s Rules provides as follows: An appeal shall not abate on the death of the appellant or respondent but the Court shall, on the application of any interested person, cause the legal representative of the deceased person to be made a party in place of the deceased. 2. If no application is made under sub-rule (1) within twelve months from the date of the death of the appellant or respondent, the appeal shall abate. 3. The person claiming to be the legal representative of a deceased party or an interested party to an appeal may apply for an order to revive an appeal which has abated and, if it is proved that the legal representative 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. 9. The applicant, as the appellant in the pending appeal, is an ‘interested person’ as contemplated under rule 102. He therefore has an interest in bringing the present application for substitution, in order to avoid abatement of his appeal. Under rules 102(1) and (2) of this Court’s Rules, an appeal does not abate upon the death of an appellant or respondent. The rule permits an application to be made for substitution of the deceased party, and upon such application, the Court shall cause the deceased’s legal representative to be made a party. If an application for substitution is not made within twelve months from the date of death of the party to the appeal, the appeal abates. Rule 102 (3), however, provides for revival of the appeal on application, for sucient cause. 10. In this case, the averments by the applicant indicate that the respondent died on 27th March 2024, while this application was led on 17th March 2025, ten days before the expiry of twelve months from the date of death of the deceased. The application was therefore brought within the period prescribed by rule 102(2), before the expiry of twelve months from the death of the respondent. There was, therefore, no need for the applicant to seek enlargement of time under rule 4 of this Court’s Rules, and prayers 1 and 2 of the application were unnecessary. 11. The applicant seeks, in his third prayer, substitution of the deceased respondent with his wife and / or son. This is where the applicant runs into some diculty. While rule 102(1) allows an interested person to apply for substitution, the person or persons to be so substituted in place of the deceased https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1830/eng@2026-09-25 2

page 2 of 4

appellant or respondent must be the deceased’s legal representative. Under section 3 of the Law of Succession Act, a personal representative of a deceased person is dened as the executor or administrator of a deceased person’s estate. Authority to represent an intestate estate is derived from a grant of letters of administration intestate. 12. Being the wife or son of a deceased person, or indeed any other relation of the deceased person, without the authority of the court to be the legal representative as provided under the Law of Succession Act, does not confer capacity to represent the estate in judicial proceedings-see Trouistik Union International & another v Jane Mbeyu & another [1993] KECA 89 (KLR). In CKM v JMM & another [2024] KECA 293 (KLR), this Court reiterated that where a cause of action survives a deceased party, the person entitled to substitute that party is the holder of letters of administration in respect of the estate. The Court stated: We reiterate that the only person who was entitled to substitute the deceased to defend the suit that the 1st respondent had led against him was the holder of letters of administration in respect of his estate (see Trouistik Union International & Another -vs- Jane Mbeyu & Another, Civil Application No. NAI 269 of 1997). The deceased was the registered proprietor of Nyaki/Kithoka/4XX which the 1st respondent claimed. Once he died the cause of action survived him, and therefore the legal representative of his estate was entitled to be joined in the proceedings to defend the claim.” 13. See also Tichu & 16 others v Ikere & 3 others (Sued jointly as administrators of the Estate of Ikere Gateau- (Deceased) & 2 others [2024] KECA 823 (KLR). 14. The diculty confronting the applicant, however is that an applicant cannot compel the deceased’s family to nominate a legal representative, and substitution must be founded upon a valid grant authorising representation of the estate. In its decision in Elias v Njoka; Njeru (Proposed Respondent) [2025] KECA 952 (KLR), this Court stated: “ Furthermore, the applicant cannot compel the deceased's family to nominate a legal representative as a respondent in this appeal, and it is in the interests of justice that the intended 1st respondent, who holds letters of administration ad litem, be substituted in place of her husband.” 15. As the applicant acknowledges in his adavit in support of his application, neither the deceased’s wife nor son, whom he has not named in his application, have obtained letters of administration intestate or a limited grant ad litem. In the circumstances, there is no- one who can be legally substituted in place of the deceased respondent. 16. In the circumstances, I am unable to grant the orders sought at prayer 3 of the applicant’s application. In view of my earlier nding that the rst two prayers of the application dated 17th March 2025 were unnecessary, the order that I can issue is one dismissing the application. 17. In closing, I observe that the applicant is caught in a situation that does not appear to be adequately provided for under our Rules. Accordingly, notwithstanding the dismissal of the present application, the applicant is at liberty to le an appropriate application under rule 102 upon appointment of a legal representative of the estate of the deceased respondent. 18. There shall be no order as to costs. DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER, 2026. MUMBI NGUGI https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1830/eng@2026-09-25 3

page 3 of 4

……………………………… 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/2026/1830/eng@2026-09-25 4

page 4 of 4