Abdi Adan Hussein & 2 Others v Attorney General & 2 Others

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(a) revival of the appeal against Shire Maalim Osman (now deceased). (b) that the duly appointed administrator ad litem of the estate of Shiree Maalim Osman be substituted in place of the deceased. (c) setting aside of the proceedings/orders and judgment issued on 10th March 2025 and that the appeal be heard afresh on the merits. (d) that leave be granted to file supplementary written submissions and costs to abide in the appeal. 2. The application is premised on grounds set out on the face of the notice of motion and augmented in the supporting affidavit of Muhidin Maalim Osman, the brother of the deceased Shire Maalim Osman. 3. The gravamen of the application is that the deceased passed away on 30th September 2023 after a prolonged illness and hospitalization. It is stated that the deceased was in ICU for a long time and that, as a result, he could not give instructions on the pending appeal. It is further stated that his family was not aware of the case and that there was a communication breakdown with his former advocate. Finally, it was stated that it was not until February 2026 that the applicant visited the family and disclosed to them the existence of the said property and the pending suit in which an adverse judgment had already Page 3 of 12

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been delivered by this Court. 4. To put the application in context, we shall give an abridged background to the dispute. The appeal challenged the judgment in Environment and Land Court No. 438 of 2013 dated 1st March 2017 by (Ombwayo, J). The dispute related to a parcel of land in Eldoret Municipality Block 15/20189 that was initially registered in the name of Leberio Farm Ltd. The land was charged to the 3rd respondent and, upon default in repayment of the loan, the land was sold at a public auction. The trial court ruled in favour of the 1 st, 2nd applicants and issued orders including declaring them bona fide purchasers for value and registered owners of the land. The court further determined that any subsequent allotment was null and void. Additionally, the 2 nd respondent and officers were declared to be trespassers and were directed to grant access as well as to vacate or be evicted. 5. Aggrieved, the 1st and 2nd respondents appealed in Kisumu Civil Appeal No. 100 of 2018, which was later transferred to Eldoret and registered as Eldoret Civil Appeal No. E044 of 2026. The appeal was heard virtually on 10 th March 2025. The 1st and 2nd respondents were represented by learned Page 4 of 12

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counsel Mr. Odongo while the 1st, 2nd and 3rd applicants were represented by learned Page 5 of 12

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counsel Mr. Mathai. All parties relied on their written submissions while the 4th respondent/applicant did not participate in the proceedings. 6. The Court of Appeal identified two issues for determination: whether the land was lawfully and regularly allocated to Leberio Farm Ltd and whether the 1st, 2nd and 3rd respondent/applicants were innocent purchasers for value without notice. On the first issue, the court found no evidence explaining how Leberio Farm Ltd became registered proprietor. The allotment relied upon covered a different and smaller parcel of land. Secondly, the court held that the land was all along owned and occupied by the 2 nd respondent and was therefore not available for allocation. The court also held that the applicants never visited or inspected the land before purchase and could therefore not be deemed to be innocent purchasers. 7. The court subsequently rendered its decision on 5 th June 2025, allowing the appeal. Consequently, the decree and all the orders of the ELC were set aside. 8. On 8th April 2026, the applicants filed this application, which was heard virtually on 8th July 2026. At the hearing, learned Page 6 of 12

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counsel Mursal Haj Ali appeared for the 1st, 2nd and 3rd applicants. There Page 7 of 12

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was no appearance or response by the respondents. The court was satisfied that the respondents were served with a hearing notice on 18th June 2026. 9. Learned counsel Mursal Hajj Ali for the applicants relied on his written submissions dated 18th May 2026, which he orally highlighted. He submitted that the applicants sought revival of the appeal because the 2 nd applicant died on 30th September 2023 and the appeal ought to have abated on 30 th September 2023. It was his position that the appeal heard on 30th March 2025 proceeded irregularly, since the 2 nd applicant was not substituted within 12 months and therefore the appeal had abated. He urged that the impugned judgment attributed fraud on the applicant posthumously in proceedings that had already abated. 10. Mr. Mursal further submitted that he was newly placed on record and asserted that the hearing proceeded due to a failure by the previous counsel on record to notify the court of the 2nd applicant’s demise. He also urged that whereas the 2nd applicant was represented by counsel in court during the hearing, his previous counsel did not disclose that there was no Page 8 of 12

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communication from the deceased party or family. He contended Page 9 of 12

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that the failure was attributable to communication breakdown occasioned by the long admission in ICU and subsequent death of the 2nd applicant who was the main point of contact. Further, he indicated that the deceased party’s family had also corroborated the assertions of long-term hospitalization, subsequent death as well as the communication breakdown due to his predicament. They further contended that the delay was also due to late notification in 2026 of the decided appeal and commencing succession proceedings. 11. In addition, Mr. Mursal submitted that sufficient cause exists for revival of appeal under rule 102(3) and the court can exercise its discretion to grant the same. Further, he asserted that the appellants would suffer no prejudice incapable of compensation by way of costs if the appeal was to be reopened and heard inter parties. He argued that to grant the application would permanently maintain the adverse findings against the deceased party whose estate never participated in the proceedings. He anchored his submissions on cases including; Shah vs Mbogo [1967] EA 116 on judicial discretion, Mbaki & Others vs Macharia & Another [2005] 2 EA 206 on a party being Page 10 of 12

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condemned unheard, Richard Ncharpi Leiyagu vs IEBC & 2 Page 11 of 12

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Others [2013] eKLR on right to be heard, Savings and Loan Kenya Ltd vs eKLR Susan Wanjiru Muritu [2002] on incompetent proceedings where a deceased party is not substituted. 12. We have carefully considered the application and the submissions and two issues arise for our determination: whether the appeal abated and ought to be revived and if so, whether the 2nd applicant (deceased) should be substituted; and whether the judgment and consequential orders should be set aside; whether the appeal abated and ought to be revived and if so, whether the 2nd respondent/applicant (deceased) should be substituted. 13. Rule 102(1) prescribes that an appeal shall not abate on the death of a party, but the court shall on application of any interested person, cause the legal representative of the deceased person to be made a party in place of the deceased. The rule further prescribes that where no application has been made within 12 months from the date of death of the party, the appeal shall abate. 14. Under rule 102(3), a legal representative of a deceased Page 12 of 12

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party or an interested party to an appeal to apply for revival of an appeal which has abated. The rule clearly states that the legal Page 13 of 12

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representative has to show that they were prevented by a sufficient cause from continuing the appeal. In view of that rider, the court, while exercising discretion, will only do so after that condition has been satisfied by the party seeking the revival of the appeal. 15. A review of the material before us indicates that the appeal was lodged through memorandum of appeal dated 7 th August 2018, heard on 10th March 2025, and judgment was delivered on 5th June 2025. The 2nd applicant died on 30th September 2023, during the pendency of the appeal. 16. The record shows that throughout the proceedings, the applicants were duly represented in the appeal by learned counsel Mr. Mathai. The advocate participated in the appeal but never raised the issue of the death of the 2 nd applicant, whose appeal had already abated by operation of law. As already stated, the dispute involved a parcel of land that was purchased jointly by all the applicants. It should be noted that what is before us is not the merit of that judgment but whether any sufficient ground has been raised to revive the appeal as against the 2nd applicant. Page 14 of 12

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17. It is important to note that Mr. Mathai did not disclose to court that the 2nd applicant had died despite appearing in court close to 2 years after his death for the hearing of the appeal. At all material times, the applicants’ advocate on record was Mr. Mathai until on 9th April 2026, when the current advocates on record filed a notice of change. It is also significant that there is no affidavit by Mr. Mathai explaining whether he was aware of the death. Though medical documents have been placed before us, we note that applicants bought the land the subject of the suit jointly. Were the other applicants aware of the death of the 2nd applicant? The applicants are quiet on this issue. 18. Discretion should not be exercised capriciously to assist a party who was duly represented throughout the proceedings, but whose counsel failed to disclose a material fact. We refer to the meaning of “sufficient cause” in Black’s Law Dictionary, 9th Edition, page 251, as cited in Wilson Cheboi Yego vs Samuel Kipsang Cheboi [2019] KECA 638 (KLR). “Sufficient Cause must therefore be rational, plausible, logical, convincing, reasonable and truthful. It should not be an explanation that Page 15 of 12

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leaves doubt in a judge’s mind. The explanation should not leave unexplained gaps in the sequence of events.” Page 16 of 12

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19. In this application, despite the 2nd applicant passing away on 30th September 2023 and the hearing being on 10 th March 2025, there was no attempt by counsel to update the court on his client’s demise. Additionally, no justification has been given for lack of communication, if any, between the deceased applicant and the counsel on record. While unfortunate, this indiscretion does not fit within the definition of sufficient cause. On the first part of this limb, we find that whereas the appeal abated by operation of law, no sufficient reasons have been advanced to warrant revival of the appeal per the test in rule 102(2) of this Court’s Rules. 20. On the second limb, regarding substitution of the legal representative, we note that the application for substitution should be made within 12 months of the death of the deceased party. See Toloin (suing as the legal representative of the Estate of the late Jonah Kipsaina) vs Sawe (all suing as the legal representatives of the late David Cheptum Sawe) & 5 Others [2025] KECA 1054 (KLR). The present application was lodged on 8th April 2026 well after the 12 months. Notably, the appeal had also been heard and determined on 5th June Page 17 of 12

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2025, hence, there is an absence of a live appeal for the legal Page 18 of 12

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representative to be substituted into. We therefore find that substitution has been overtaken by events. Whereas substitution is permissible in law, granting the same would be a futile academic exercise in the present circumstances and we find no cause to allow that prayer. It is trite that the court cannot act in vain. This was an appeal against the applicants jointly and severally. The appeal was heard and a judgment rendered against the applicants. This application is certainly an afterthought and an attempt to have a second bite of the cherry. The application fails on this limb. 21. On the prayer seeking the setting aside the judgment we hold that this must go hand in hand with revival of the appeal and subsequent substitution. Having found that sufficient cause for revival of the appeal was not established, it follows that the impugned proceedings, judgment and orders obtain and that prayer equally fails. It is however, important to point out that the judgment and consequential orders of 5th June 2025 did not distinguish the 2nd applicant (deceased) from the 1st and 3rd applicants. All the findings and resultant orders by the court were directed to all three respondents/applicants as joint holders Page 19 of 12

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of one title, co - purchasers from a single public auction purchase Page 20 of 12

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and represented by the same advocate who addressed the issues for determination. We consequently find no basis to interfere with the judgment or its consequential orders despite the suit having abated as against the deceased respondent. The substratum remains the same. 22. Consequently, the notice of motion dated 8th April 2026 is hereby dismissed with no order as to costs. Dated and delivered at Eldoret this 2nd day of October, 2026. M. GACHOKA, C.Arb, FCIArb. ………………………. ………………… JUDGE OF APPEAL NDUMA NDERI ………………….……………… JUDGE OF APPEAL L. M. NDOLO ……………………………… JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR. Page 21 of 12

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