https://new.kenyalaw.org/akn/ke/judgment/keca/2026/955

Njeru v Frank Logistics Ltd & 9 others (Civil Appeal (Application) E782 of 2021) [2026] KECA 955 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KECA 955 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal (Application) E782 of 2021 Katwa Kigen, JA May 15, 2026 Between Francis Nyaga Njeru Appellant and Frank Logistics Limited 1st Respondent Judy Muthoni Ngugi 2nd Respondent Nazmudin Habib Kassam Kurji 3rd Respondent Swami Contractors Limited 4th Respondent Nairobi City Council 5th Respondent The Cabinet Secretary, Ministry of Lands, Housing & Urban Development 6th Respondent The Chief Land Registrar 7th Respondent National Land Commission 8th Respondent Inspector General Of Police 9th Respondent The Hon Attorney General 10th Respondent (Being an application for substitution of the 3rd respondent in an appeal against the judgment of the Environment and Land Court of Kenya at Nairobi (K. Bor J. dated 12th November 2021 in ELC Petition No. 1524 of 2016 ? 1524 of 2016 ) Ruling 1.Before me is a Notice of Motion dated 12th February 2026. The same is brought pursuant to Sections 3A and 3B of the Appellate Jurisdiction Act, Section 26 of the Court of Appeal (Organization and Administration) Act, and Rules 20 and 102 of the Court of Appeal Rules, 2022, together with all other enabling provisions of the law. It seeks, among other prayers, that Parinbanu Nazmudin Kurji, the duly appointed legal representative of the estate of the late Nazmudin Habib Kassam Kurji, be substituted as the 3rd Respondent in this appeal; that the appeal be revived by dint of such substitution; and that the pleadings be amended to reflect the correct parties. 2.At the outset, I note that a similar application had previously been made before this Court and was dismissed by my sister, Mumbi Ngugi, J.A., in her ruling delivered on 28th November 2025. In that ruling, the learned Judge held that while substitution was sought, there was no prayer for revival of the abated appeal, and therefore the Court could not proceed to substitute in a vacuum, the appeal against the deceased 3rd Respondent having abated by operation of law. 3.The present application is premised on the grounds that Civil Appeal No. E782 of 2021 is still pending before this Court against several parties, and although the 3rd Respondent died on 29th June 2022, the cause of action survives against his estate. It is contended that the Appellant only became aware of the death on 8th July 2025 during a pre-trial before the Deputy Registrar, and that since then, the estate has obtained a grant of probate in Succession Cause No. E1325 of 2022, appointing Parinbanu Nazmudin Kurji as the legal representative. 4.The application is further supported by the affidavit of Francis Nyaga Njeru, sworn on 12th February 2026, which deposes that the estate of the deceased 3rd Respondent is a beneficiary of the judgment sought to be set aside, and that their participation is necessary for the just determination of the appeal. The deponent avers that the abatement was not intentional, was occasioned by factors beyond the Appellant’s control, and that unless substitution and revival are allowed, grave injustice will be occasioned on all parties. The affidavit further narrates that the Appellant is keen to have the appeal heard and determined on its merits, and that the estate of the deceased 3rd Respondent has obtained the requisite grant of representation, thereby enabling substitution. It is urged that the delay in bringing the present motion was not inordinate and that the orders sought would not prejudice the respondents but would instead ensure that all issues arising from the suit property are conclusively adjudicated. 5.The application is opposed. Opposition is mounted through the Replying Affidavit of Parinbanu Nazmudin Kurji, sworn on 22nd April 2026, who is the widow of the deceased 3rd Respondent and the duly appointed legal representative of his estate. In that affidavit, she deposes that the application is incompetent, misconceived, and founded on material non-disclosure. She avers that the 3rd Respondent passed away on 29th June 2022, and that she petitioned for and obtained a grant of probate on 15th July 2024, which was confirmed on 27th January 2025. She contends that under Rule 102(2) of the Court Rules, the appeal abated on 29th June 2023, and that revival can only be sought upon demonstration of sufficient cause. She further deposes that the Appellant’s assertion that he only became aware of the death on 8th July 2025 is false and misleading. She annexes correspondence dated 26th April 2024 addressed to the President of the Court, in which her advocates expressly notified the Court of the death of the 3rd Respondent, and a subsequent letter dated 30th April 2024 from the Appellant’s advocates acknowledging receipt and noting that the 3rd Respondent was deceased. She also annexes a letter dated 23rd October 2024, addressed to the Deputy Registrar, copied to the Appellant’s advocates, again confirming the death. 6.On the basis of this record, she deposes that the Appellant and his advocates were aware of the death at least as early as April 2024, yet failed to take any steps to apply for substitution or revival until February 2026. She terms this delay inordinate and unexplained, and argues that the Appellant has deliberately suppressed material facts in order to mislead the Court. She further avers that the Appellant’s deposition that he only became aware of the death in July 2025 amounts to a false statement on oath, inconsistent with documentary evidence, and raises serious questions of credibility and good faith. She concludes that the Appellant has failed to demonstrate sufficient cause to warrant revival of the appeal or substitution of the 3rd Respondent, and urges that the application be dismissed with costs to the estate. 7.Both parties filed written submissions to the application. 8.The Appellant’s submissions are dated 16th April 2026. In them, learned counsel submits that the application is properly before the Court, having been brought under the enabling provisions of the Appellate Jurisdiction Act and the Court of Appeal Rules. Counsel argues that the cause of action against the deceased 3rd Respondent survives his death, and that substitution is necessary to ensure that the estate is represented in the pending appeal. It is urged that the delay in bringing the application was not deliberate but occasioned by factors beyond the Appellant’s control, including late awareness of the death and the time taken to obtain the grant of representation. Counsel further submits that the Court is enjoined by Articles 48 and 50 ofthe Constitution to ensure access to justice and the right to a fair hearing, and that revival and substitution will enable the appeal to be determined on its merits without prejudice to any party. 9.Conversely, the 3rd Respondent’s estate, through its advocates, filed submissions dated 27th April 2026. In those submissions, counsel contends that the application is procedurally defective and an afterthought. It is argued that under Rule 102(3) of the Court of Appeal Rules, revival of an abated appeal must first be sought before substitution can arise, and that the Appellant has failed to adhere to this settled sequence. Counsel emphasizes that the Appellant had knowledge of the death of the 3rd Respondent as early as April 2024, yet took no steps until February 2026, a delay of over one year and nine months. It is submitted that such delay is inordinate, unexplained, and disentitles the Appellant to the discretionary relief sought. 10.Counsel relies on authorities including Obat v Uduny & 4 others [2024] KECA 1021 (KLR) and Rebecca Mijide Mungole v Kenya Power & Lighting Company Ltd [2017] KECA 544 (KLR) to emphasize that revival is not a matter of right, and that sufficient cause must be demonstrated. In their view, the Appellant has failed to discharge this burden, and the estate should not be deprived of the accrued benefit of abatement. 11.I have keenly considered the Notice of Motion, the supporting affidavit sworn by the Appellant, the Replying Affidavit sworn by Parinbanu Nazmudin Kurji, together with the rival submissions filed by both parties. I have also taken into account the ruling of my sister, Mumbi Ngugi, J.A., delivered on 28th November 2025, in which a similar application was dismissed for want of a prayer for revival. 12.From the pleadings and submissions, the sole issue that arises for determination is whether the Appellant has satisfied the legal threshold for revival of the abated appeal and the consequent substitution of the deceased 3rd Respondent’s legal representative. 13.The law on revival and substitution is settled. Rule 102(1) of the Court of Appeal Rules, 2022 provides that an appeal shall not abate on the death of a party, but substitution may be made upon application. Rule 102(2) stipulates that if no application for substitution is made within twelve months of death, the appeal abates. Rule 102(3) further provides that a person claiming to be the legal representative of a deceased party may apply for revival of an abated appeal, and if sufficient cause is shown, the Court shall revive the appeal upon such terms as it deems fit. 14.In the present case, the 3rd Respondent died on 29th June 2022.By operation of law, the appeal abated on 29th June 2023. The Appellant’s application was filed on 12th February 2026, well over two years after abatement. The burden, therefore, lies squarely on the Appellant to demonstrate sufficient cause for the delay and to justify revival. The Appellant contends that he only became aware of the death on 8th July 2025, and that the delay was occasioned by factors beyond his control. Conversely, the Respondent’s estate has placed before this Court documentary evidence showing that the Appellant’s advocates were notified of the death as early as April 2024, and indeed acknowledged the same by letter dated 30th April 2024. The estate, therefore, argues that the Appellant’s deposition is false, amounts to material non-disclosure, and undermines the credibility of the application. 15.The jurisprudence of this Court is clear that revival is not a matter of right. In Obat v Uduny & 4 others [2024] KECA 1021 (KLR), the Court emphasized the proper sequence of applications, holding that:“The proper course is for an applicant to first seek revival of the abated appeal, and only thereafter can substitution of the legal representative arise. Without revival, substitution would be in vain, as the Court would be acting in a vacuum.” 16.This principle was reiterated in Rebecca Mijide Mungole v Kenya Power & Lighting Company Ltd [2017] KECA 544 (KLR), where the Court cautioned that revival is discretionary and requires demonstration of sufficient cause, failing which the accrued right of abatement cannot be disturbed. Applying these principles, the chronology here is undisputed. The 3rd Respondent died on 29th June 2022. The appeal abated on 29th June 2023. By April 2024, correspondence on record shows that the Appellant’s advocates had knowledge of the death. Yet no steps were taken until February 2026, a delay of over one year and nine months. The Appellant’s deposition that he only became aware in July 2025 is contradicted by documentary evidence, and no coherent explanation has been offered for the intervening period. 17.Measured against the standard of “sufficient cause” as articulated in Wilson Cheboi Yego v Samuel Kipsang Cheboi [2019] KECA 638 (KLR), sufficient cause must be rational, plausible, logical, convincing, and truthful, and must not leave unexplained gaps in the sequence of events. The Appellant’s case leaves precisely such a gap. 18.In those circumstances, I find that the Appellant has failed to discharge the burden of demonstrating sufficient cause. Without revival, substitution cannot arise. 19.I am constrained in law by the facts of the situation to dismiss the application. 20.Costs to the 3rd Respondent DATED AND DELIVERED AT NAIROBI THIS 15TH DAY OF MAY, 2026.KATWA KIGEN K. J.......................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR