https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1323

Juma v Orange Telekom Kenya Ltd & 3 others (Civil Appeal 251 of 2020) [2026] KECA 1323 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KECA 1323 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal 251 of 2020 JW Lessit, JA July 10, 2026 Between Hilton Mwakio Juma Applicant and Orange Telekom Kenya Ltd 1st Respondent Royal Medial Servcies Ltd 2nd Respondent Radio Africa Ltd 3rd Respondent Homeboys Entertainment Ltd 4th Respondent (Being an application for substitution of the appellant from the Judgment and Decree of the High Court of Kenya at Nairobi (M. Kasango, J.) delivered on 29th November, 2018 in H.C. Civil Suit No. 827 of 2009 Civil Suit 827 of 2009 ) Ruling 1.This application has been brought pursuant to rule 87(1) and 102 of the Court of Appeal Rules. It seeks to two orders:a.The Court be pleased to substitute the appellant, the late Hilton Mwakio Juma (deceased) with Nancy Wanja Mwangi, the Administrator ad–litem of the deceased’s Estate.b.The Court be pleased to order that as far as possible and as much as appropriate, any reference in the record of appeal and in the appeal to the late Hilton Mwakio Juma (deceased), be amended to read Nancy Wanja Mwangi, the Administrator Ad -Litem of the Estate of Hilton Mwakio Juma (deceased).c.That the costs of this application be in the cause. 2.When this matter was placed before the Court on the 3rd June, 2026, for disposal by way of written submissions, only the applicant’s submissions had been filed by Wilred Luci advocate. I noted however that the respondent’s counsel, Chiuri Kirui advocates had not been served with the hearing notice, but had been served with the directions as to the filing of submissions. The Court registry is to blame for none service. The submissions were filed on 8th June, 2026, evident through this Court’s tracking system, and have now been placed before me for consideration alongside those by the applicant. 3.The application is supported by the affidavit of Nancy Wanja Mwangi, and the grounds on the face of the application. The grounds are, inter alia, that: appellant has since passed away and that since his appeal survives his demise being a claim of breach of its intellectual property rights, in the nature of unauthorized exploitation of copy right, it is necessary to have the him substituted with his personal administrator to enable the Court proceed with the determination of his appeal. 4.It is further supported by the ground that on 12th March, 2026 the appellant’s beneficiaries obtained Grant Ad – Litem limited in the name of his widow Nancy Wanja Mwangi, for the sole purpose of substituting the appellant and enabling the prosecution of the appeal on behalf of the deceased to secure the legal rights and interests accruing to the deceased for the purpose of future transmission to his beneficiaries. 5.While admitting that the application to substitute the appellant in the case was brought late, it was deposed that estate of the deceased appellant has been unable to initiate the succession proceedings to administer his estate, due to serious financial strain, following the death of the appellant who was their sole bread winner: and have only now been able to secure some goodwill to enable them obtain limited grant ad litem and seek substitution before the Court. The applicant deposed further that she had to choose between feeding the family, providing basic needs and filing the process. 6.It was also deposed that this Court has since referred the appeal for Mediation pursuant to the order of the Joel Ngugi, JA. made on 18th December, 2025; that the matter was listed as COA/MED/008/2026 before Mr. Edwin Apacha, Mediator; and that the estate of the deceased needs to urgently regularize their locus standi in the appeal. That there was absolutely no legally plausible, factually possible nor juridical probable prejudice can be visited on the respondent if the application is allowed; and, it is not only just but mete for the application be allowed subsisting the appellant with the administratrix as the personal administrator of the estate of Hilton Mwakio (Deceased), and the record amended accordingly. 7.Explaining the difficulty in bringing the application earlier, it was deposed that the family of the deceased had not been able to administer deceased's estate due to lack of funds, and that the family has had to rely on goodwill since his demise. 8.The applicant’s counsel in his submissions invites this Court to consider the fundamental principles of natural justice as expressed in Mafumbula & 17 Others vs. Attorney General [2026] KECA 189 (KLR) citing with authority the case of CKM vs. ENM & Another Civil Appeal 250 of 2019) [2024] KECA 293 (KLR) where this Court held:“It is basic that the rules of natural justice and fair play would require that where a party to a suit dies and the cause of action survives him, his estate has to be heard through the estate's legal representative before a decision can be rendered, in any case, any decision made against such an estate can only be satisfied by the legal representative.” 9.In the respondent’s submissions, learned counsel, Mr. Chiuri Kirui, cited the case of Njoroge & Another vs. Kamau (deceased) & Another, (no citation seen) while acknowledging that an application for revival of an abated appeal can only be allowed if the applicant satisfies the Court the reason for the delay involved. Counsel submitted that the application is opposes on one ground: that it has been brought late, after the appeal had abated, yet the applicant had counsel representing them even before the abatement of the appeal. Counsel complains that the applicant’s counsel was not candid on two occasions; when he appeared in Court on 18th December, 2012, in absence of the respondent’s counsel and failed to disclose to the Court that the deceased had died on 5th September, 2022 and that the appeal had abated. The same omission was committed when the parties appeared before the Mediator and failed to disclose the abatement of the appeal and the pending application for revival. 10.I have considered this application, the submissions and the law and rules applicable. 11.Rule 102(3) of the Court of Appeal Rules [Rules] is an amendment of the repealed rule 99(3) of the Rules 2010 which stated that:“The person claiming to be the legal representative of a deceased 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 sufficient cause from continuing the appeal, the court shall revive the appeal upon such terms as to costs or otherwise as it deems fit.” 12.This application has been made by the legal representative of the estate of the deceased party and it is therefore a competent application I am guided by Charles Mbwika Musee vs. Settlement Fund Trustees & Mwangangi Nthanga Nguyo, that once an appeal abates, it is only the legal representative of a party who may move the court for the revival of the appeal. 13.The deceased died in 2022. The cause of action survived him. The issue is whether the applicant has shown sufficient cause for the granting of the orders sought. The principles that apply in determining whether to exercise the Court’s discretion in favour or otherwise of an applicant are as were set out in a plethora of cases. I will cite one of them; Sila Mutiso vs. Rose Hellen Wangari Mwangi Nai. Civ Application No. 255 of 1997. It sets out the issues to be considered by the Court are:a.length of delay; ii) reason for delay;iii.the chances of the appeal succeeding if the application is granted;iv.the degree of prejudice to the Respondent if the Application is granted. 14.Rule 102(2) provides that an appeal abates if no application is made to substitute the deceased party within twelve months from the date of death. The appellant died on 5th September, 2022. The appeal abated on 6th September, 2023. The application has therefore been brought two years nine months later. 15.The applicant, the widow of the deceased, has shown given an explanation why this application was long in coming. The sum total of her explanation is that she was financially constrained as the deceased was the sole bread winner of the family, and that he died suddenly. She has deposed that she had to choose between meeting the basic needs of the family, including food, and bringing the application. That it was the reason she was unable to move the Court in time. She explained further that she has relied on well-wishers to be able to file this application. 16.On the length of the delay, whether it was inordinate; The Court of Appeal in Joseph Kirui vs. Said K. Keitany [2021] eKLR invoked the provisions of Article 159 of the Constitution and allowed an application to revive an abated appeal filed after 6 ½ years. In the said case , it was observed that:“We have considered the applicants motion and the respondent’s reply. It is evident to us that although the applicant’s motion has been filed about 6½ years after the death of the deceased, the applicant has demonstrated that he made serious efforts in seeking to identify the persons concerned with the deceased’s estate but his efforts were not successful.In the circumstances, we think that this is an appropriate situation in which the Court should apply Article 159 of the Constitution, revive the appeal and allow the application for substitution in order to give the applicant an opportunity in having his day in Court. This would allow for substantive justice and fairness.” 17.I have considered the reasons for the delay in bringing this application. I do not consider that two years and nine months was inordinate delay. For the reason advanced for the delay, taking judicial notice of the harsh economic times in the country, I am satisfied that the explanation is satisfactory. In any event, it has not been challenged. 18.I note that the appeal was referred for mediation. I believe there is good reason to allow the applicant to be heard. 19.For the foregoing reasons, I find merit in this application and order as follows:a.An order be and is hereby issued and or made to substitute the appellant, the late Hilton Mwakio Juma (deceased) with Nancy Wanja Mwangi, the Administratrix ad–litem of the deceased’s Estate.b.It is further ordered that as far as possible and as much as appropriate, any reference in the record of appeal and in the appeal to the late Hilton Mwakio Juma (deceased), be amended to read Nancy Wanja Mwangi, the Administratrix Ad-Litem of the Estate of Hilton Mwakio Juma (deceased).c.That the costs of this application be in the cause. DATED AND DELIVERED AT NAIROBI THIS 10TH DAY OF JULY, 2026.J. LESIIT..........................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR