Nyambara v Osano & 12 others

RULING 1. The application before this Court is a Motion on Notice dated 15th January, 2026, brought under sections 3A and 3B of the Appellate Jurisdiction Act, Order 24 Rule 4 of the Civil Procedure Rules and all other enabling provisions of the law. Quinter Adhiambo Nyambara, “the applicant”, seeks, in the main, that leave be granted to her to substitute the 2nd respondent in the appeal, Joseph Otieno alias Jose Lewis Otieno, “the deceased”, in her capacity as the wife and the legal representative of his estate; that upon such substitution, the Notice of Appointment of Advocates led by M/s Odindiko & Company Advocates on her behalf be deemed as properly on record; and that the costs of the application be in the cause. 2. The application is based on the grounds advanced on the face of the motion and the supporting adavit of the applicant sworn on or about 15th January, 2026. In summary, the applicant states that the deceased, exited this world on 10th April 2025. However, the present appeal was instituted after his death. The applicant is a beneciary of the estate and the widow of the deceased and that she has since obtained a grant of letters of administration ad litem in Miscellaneous Succession Cause No. E001 of 2026, authorising her to represent the estate in the appeal. 3. The applicant further contends that the intended substitution is necessary to enable the Court to eectually and conclusively determine the issues arising in the appeal. According to her, the appeal survives the estate of the deceased and unless substitution is allowed, the appeal risks being rendered incompetent to the detriment and prejudice of the estate of the deceased. She maintains that no prejudice will be occasioned to any of the parties if the orders sought are granted. 4. The applicant further states that she has appointed the rm of Odindiko & Company Advocates to act for her in this appeal and that a notice of appointment has already been led, to take eect upon the Court granting the substitution sought. She therefore urges the Court to allow the application in the interests of justice. 5. In a nutshell, the applicant's case is that following the death of the 2nd respondent in the appeal before the institution of the present appeal, and having obtained a limited grant of letters of administration ad litem, she is the proper person to represent the estate of the deceased in this appeal. She contends that substitution is indispensable to safeguard the interests of the estate, preserve the competency of the appeal and enable the Court to conclusively determine the dispute before it. 6. The application is not opposed. As at the time of crafting this ruling, there is no replying adavit on record from any of the respondents. Equally, no written submissions have been led by either party in respect of the motion despite the directions of the Deputy Registrar of this Court to that eect. 7. Be that as it may, it is clear from the hearing notice and the record before the Court that the parties were duly served with the application and the hearing notice. The respondents were therefore aorded an opportunity to respond to the application but elected not to do so. I shall accordingly proceed to determine the application on the basis of the material placed before the Court. 8. I have considered the application, the adavit in support thereof and the documents annexed thereto. The sole issue for determination is whether the applicant has established sucient grounds to warrant substitution of the deceased with the legal representative of his estate, that is, the applicant. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2104/eng@2026-10-05 2

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9. The law governing applications of this nature is found Rule 102 of the Court of Appeal Rules and not necessarily Order 24 Rule 4(1) of the Civil Procedure Rules as cited by the applicant. The essence of the rule is that where a party to an appeal, dies and the appeal survives, the court shall, upon application, cause the legal representative of the deceased party to be substituted as party in the appeal and the appeal shall thereafter proceed. Although the wrong provisions of the law were cited in support of the application, I do not appreciate any prejudice that could have been occasioned to the other parties to the Appeal by the omission as the essence of the application is self evident. I will therefore treat the application as if it was brought under Rule 102 of the Court of Appeal Rules. 10. The rationale behind substitution is to ensure that an appeal that survives the deceased party is not defeated by death and that the estate of the deceased is accorded an opportunity to participate in the appeal through a duly appointed legal representative. This Court has consistently recognized that where a party dies and the appeal survives, substitution by the legal representative is the proper procedural mechanism through which the appeal may continue. See Virginia Edith Wambui Otieno v Joash Ochieng Ougo & Another [1987] eKLR, Trouistik Union International & Another v Jane Mbeyu & Another [1993] eKLR and Mungai & 2 Others v Wanjiru Alias Susan Naipono Letuya & Another [2026] KECA 133 (KLR). 11. In the instant application, the material placed before the Court shows that the 2nd respondent in the appeal, Joseph Otieno alias Jose Lewis Otieno, is deceased. The applicant has exhibited a grant of letters of administration ad litem issued in Miscellaneous Succession Cause No. E001 of 2026, authorising her to represent the estate of the deceased in the appeal. There is therefore evidence that she is clothed with the requisite legal capacity to represent the estate of the deceased. 12. No replying adavit or any other papers in opposition to the application were led to challenge either the fact of death, the applicant's status as legal representative, or the necessity for substitution. Equally, no prejudice has been demonstrated that would be occasioned to any party should the orders sought be granted. 13. In the circumstances, I am satised that the applicant has met the threshold contemplated under Rule 102 of the Court of Appeal Rules and that the interests of justice would be served by allowing the estate of the deceased to be represented in this appeal. The application is therefore merited. 14. Accordingly, I allow the Motion dated 15th January, 2026 and make the following orders: (a) Quinter Adhiambo Nyambara, being the holder of a grant of letters of administration ad litem in respect of the estate of Joseph Otieno alias Joselewis Otieno (deceased), is hereby substituted in place of the deceased 2nd respondent for purposes of this appeal. (b) The Notice of Appointment of Advocates led on behalf of the substituted applicant shall be deemed as duly and properly led. (c) Costs of the application shall be in the appeal. DATED AND DELIVERED AT KISUMU THIS 5TH DAY OF OCTOBER, 2026. ASIKE-MAKHANDIA ………………………………… JUDGE OF APPEAL I certify that this is a true copy of the original Signed https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2104/eng@2026-10-05 3

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DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2104/eng@2026-10-05 4

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