https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1486

Njora v Kahiga (Civil Appeal (Application) 322 of 2019) [2026] KECA 1486 (KLR) (24 July 2026) (Ruling) Neutral citation: [2026] KECA 1486 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Civil Appeal (Application) 322 of 2019 LA Achode, JA July 24, 2026 Between Godfrey Kibuthu Njora Appellant and Harrison Njuguna Kahiga Respondent (Being an appeal from the Judgment of the Environment and Land Court at Murang’a (Kemei J) dated 22nd July, 2019 in ELC NO. 4 OF 2017) Ruling 1.In the Notice of Motion dated 15th August, 2023, brought under rule 102(1) of the Court of Appeal rules 2022, the applicant seeks an order to substitute the appellant, Godfrey Kibuthu Njora (deceased), with Stephen Hungi Kibuthu as the legal representative in the on-going appeal. 2.The application is premised on the grounds on the face thereof and the supporting affidavit of Dennis Kimakia advocate for the appellant, dated 15th August, 2023. He deposes that the appellant filed the record of appeal on 17th December, 2019 and served it upon the respondent on 10th October, 2020. Unfortunately the appellant passed away on 16th July, 2021. A limited Grant of Letters of Administration Ad Litem was obtained from the High Court at Murang’a on 24th April, 2023, specifically to allow Stephen Mbungi Kibuthu to substitute the appellant for the purpose of prosecuting the appeal. 3.The applicant filed submissions dated 1st July, 2026 acknowledging that his application is filed beyond the one year period provided in rule 102 (2), because the deceased died on 16th July, 2021 and the Grant of Letters of Administration Ad Litem was issued on 4th May, 2023. He attributes the delay to the succession process which was not within his control. 4.It is trite law that the estate of the deceased will only be represented in proceedings by a person duly authorized to do so, and such capacity vests only upon issuance of grant of representation. The applicant relied on the case of John Muthee Matumo vs Thomas Gerishon & 4 Others [2022] eKLR to drive this point home. The applicant submits that in the alternative, and without prejudice to the foregoing, if the appeal is deemed to have abated by operation of the law, due to the expiry of the one year period, this court has power under rule 102 (3) to revive it. 5.In rebuttal, the respondent filed submission dated 24th June, 2026 urging that under rule 102 (2), an appeal abates, if an application for substitution is not made within 12 months from the date of death. Death having occurred on 17th July, 2021, the application for substitution should have been filed by 16th July, 2022. Therefore, the appeal abated by operation of the law on 17th July, 2022. Further that the application dated 15th August, 2023 only requests for substitution and does not invoke rule 102 (3) to revive the abated appeal. Hence, there is no appeal. 6.An application for substitution is governed by rule 102 (1) which states that:“(1)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 representation of the deceased person to be made a party in place of the deceased.”The Rules go on to stipulate under 102 (2) that:“If no application is made under (1) within twelve months from the date of death of the appellant or respondent, appeal shall abate”. 7.There is no dispute in the application before me that the appeal herein abated by operation of the law on 17th July, 2021 and there is no application made to revive it. It follows therefore, that there is no pending appeal for this court to substitute, or for the appellant to prosecute. The applicant could have made the two applications simultaneously under rule 102(1) and 102(3), if he was so minded. He did not do so. For the foregoing reasons, this application is found to be devoid of merit and is therefore dismissed. DATED AND DELIVERED AT NYERI THIS 24TH DAY OF JULY, 2026.L. ACHODE………………………JUDGE OF APPEALI certify that this is a true copy of the original SignedDEPUTY REGISTRAR