Kurutu v Simiyu & another (Civil Appeal (Application) E719 of 2021) [2026] KECA 1676 (KLR)

**IN THE COURT OF APPEAL AT NAIROBI** **(CORAM: MUMBI NGUGI, JA. (IN CHAMBERS)) CIVIL APPEAL (APPLICATION) NO. E719 OF 2021** **BETWEEN** **JOSEPH MUTURI KURUTU APPELLANT** **AND** **JAMES MANASESSEH SIMIYU ……………..… 1ST RESPONDENT JOSEPH NDIRANGU T/A** **NDIRANGU STORES ……………………………… 2ND RESPONDENT** *(Being an application to revive an appeal and to substitute Messrs Simon Njoroge Muturi and Mbuthia Muturi for the deceased Appellant Joseph Muturi Kurutuin in the appeal arising from the Judgment and Decree of the Environment and Land Court at Thika (Lady Justice L.G.* *Gacheru) dated 30th September 2021* *in* ***ELC Suit No. 239 of 2018.)*** **\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*** **RULING** 1. In the application dated 11th August 2025, the applicants, **Simon Njoroge Muturi** and **Isaac Mbuthia Muturi**, who are the sons of the late appellant, **Joseph Muturi Kurutu**, seek orders that the appeal, which has abated, be revived, and that upon its revival, they be substituted as appellants in place of their deceased father. 2. The application is brought under section 3A (1) and 3B of the Appellate Jurisdiction Act, section 82(1)(a) of the Law of Succession Act and rule 102(3) of the Court of Appeal Rules, 2022. It is based on the grounds on its face and on an affidavit sworn by the applicants on 11th August 2025, the applicants aver that their father died on 13th September 2023 during the pendency of this appeal. Due to an oversight by his former counsel, the death of the appellant caused the appeal to abate. 1. The applicants state that upon their father’s death, they applied for and obtained Limited Letters of Administration *ad litem* under section 82(1)(a) of the Law of Succession Act to the estate of their late father for the purpose of prosecuting the appeal. They state that they shared a copy of the Letters of Administration ad litem with their father’s advocates, the firm of Walker Kontos & Co. Advocates; that on 16th April 2024, the said firm prepared and sent to the applicants an application for substitution of the deceased appellant with his legal representatives; that they promptly signed the application and returned it to Walker Kontos on 18th April 2024, expecting that it would be filed in this Court without delay. 2.  The applicants aver that it was therefore surprising and deeply concerning to them when, on 11th July 2025, they discovered, through inquiry with Walker Kontos Advocates, that the substitution application had never been filed. They aver that on 15th August 2025, they requested the firm of Walker Kontos Advocates to hand over their late father’s file to enable them pursue the appeal, and they instructed their present advocates, Wanjiku & Wanjiku LLP, to take over the conduct of the appeal. 3. The applicants have filed submissions dated 24th October 2025 in support of their application, which is not opposed, the respondent not having filed any response to the application. 4. The appellant in this matter died on 13th September 2023. As no application for his substitution was filed within twelve (12) months of his death as required under rule 102(2) of the Rules of this Court, the appeal is deemed to have abated on 12th September 2024. 5. Under rule 102(3), a 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. The rule requires that the applicant proves that he 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. In this case, the applicants aver that the abatement resulted solely from the oversight on the part of the deceased’s advocates, the firm of Walker Kontos, and not from any inaction on their part. 1. They assert that they have acted with all reasonable diligence in the circumstances, including obtaining the letters of administration *ad litem* and pursuing the matter through new counsel as soon as the oversight became apparent. They further assert that in the interests of justice, the appeal ought to be heard on its merits rather than be lost by procedural default. They therefore pray that the appeal be revived and they, as legal representatives of the estate, be substituted in place of their deceased father. 2. In ***Njoroge & another v Kamau (Deceased) & another*** [2024] KECA 806 (KLR), this Court (Korir, JA) observed that: ***“A prayer for revival of an appeal which has abated cannot be allowed as a matter of course or as of right. An applicant seeking an order of revival must demonstrate to the satisfaction of*** ***the court that he or she was prevented by sufficient cause from making an application for substitution before the abatement of the appeal.”*** 1. I have considered the application and the submissions buy the applicants. I have also noted the explanation advanced by the applicants for the failure to seek substitution of the appellant in time, leading to the abatement of the appeal. They aver that they had applied for letters of administration *ad litem* for the purpose of pursuing their father’s appeal; an application for substitution had been prepared and forwarded to them by the firm of Walker Kontos a few months after the death of the deceased appellant; they had returned the application, duly signed, to the advocates; they subsequently discovered that the application had not been filed, leading to abatement of the appeal; and they had then instructed their current advocates, who filed the present application. 2. In the circumstances, I am satisfied that the applicants were “prevented by sufficient cause” from applying for substitution within the 12‐month period prescribed by the rule, leading to abatement of the appeal. I therefore find that the application dated 11th August 2025 is merited, and I hereby allow it, and the appeal is hereby revived. The applicants, **Simon Njoroge Muturi** and **Isaac Mbuthia Muturi**, are substituted in place of the deceased appellant, **Joseph Muturi Kurutu**, as appellants in Civil Appeal No. E719 of 2021. 1. There shall be no order as to costs. **Dated and delivered at Nairobi this 11th day of September, 2026.** **MUMBI NGUGI**  **……………………………….** **JUDGE OF APPEAL** *I certify that this is a true copy of the original.* ***Signed DEPUTY REGISTRAR***