https://new.kenyalaw.org/akn/ke/judgment/keca/2026/888
The court held that despite the appeal having abated under Rule 102, it would overlook the inelegant framing of the motion and, in the interest of substantive justice, allow revival of the appeal and the motion for substitution as prayed, especially since the application was unopposed and supported by a death...
Source-derived case information.
- Citation
- [2026] KECA 888 (KLR)
- Parties
- Applicant: Marsha Birya Dena; 1st Respondent: Fred Karl Schumacher; 2nd Respondent: Hans Koschany; 3rd Respondent: DOPP Investments Limited
- Court
- Court of Appeal
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal (Application) E076 of 2023
- Procedural Posture
- Civil Appeal (application) / Application for Substitution of Deceased Appellant and Leave to Revive Appeal
- Outcome
- Application allowed.
- Judges
- ["F Tuiyott"]
- Legal Topics
- Substitution of Deceased Party, Revival of Abated Appeal, Limited Grant Ad Litem, Non Opposed Application, Interest of Substantive Justice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Marsha Birya Dena
Applicant
Fred Karl Schumacher
1st Respondent
Hans Koschany
2nd Respondent
DOPP Investments Limited
3rd Respondent
Procedural Posture
Civil Appeal (application) / Application for Substitution of Deceased Appellant and Leave to Revive Appeal
Legal Issues
- 1 Whether the deceased appellant could be substituted by the applicant.
- 2 Whether the appeal, having abated under Rule 102 of the Court of Appeal Rules 2022, should be revived.
- 3 Whether the court should overlook defective drafting in the motion in favour of substantive justice.
Ratio Decidendi
The court held that despite the appeal having abated under Rule 102, it would overlook the inelegant framing of the motion and, in the interest of substantive justice, allow revival of the appeal and the motion for substitution as prayed, especially since the application was unopposed and supported by a death certificate and a limited grant ad litem.
Court Disposition
Application allowed.
Orders
- The appeal was revived.
- The deceased appellant was to be substituted by Beatrice Kadzo Chengo.
Full Case Text
Judgment text and source record
1 paragraphs
Dena v Koschany & 2 others (Civil Appeal (Application) E076 of 2023) [2026] KECA 888 (KLR) (8 May 2026) (Ruling) Neutral citation: [2026] KECA 888 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Civil Appeal (Application) E076 of 2023 F Tuiyott, JA May 8, 2026 Between Marsha Birya Dena Applicant and Fred Karl Schumacher 1st Respondent Hans Koschany 2nd Respondent DOPP Investments Limited 3rd Respondent (Being an application for substitution of the appellant (Deceased) and leave to revive the appeal in Civil Appeal No. E076 of 2023) Ruling 1.The notice of motion dated 13th March 2026 is for “striking out the appellant” herein and in his place be substituted Beatrice Kadzo Chengo (Beatrice). 2.The motion is supported by the affidavit of Beatrice sworn on 13th March 2026. She annexes to it a copy of the death certificate of Masha Birya Dena (the deceased appellant) and a copy of a limited grant of letters of administration ad-litem granted to her on 29th November 2023 in respect to the deceased appellant. It is limited to the purpose of instituting and/or prosecuting, and/or defending suit with no power of distribution. 3.The motion is not opposed despite service of the motion and hearing notice to counsel for the respondents. 4.Although the suit would have abated under the provisions of Rule 102 of the Court of Appeal Rules 2022, the applicant has in the grounds on the face of the motion sought its revival, and whilst this should have been a substantive prayer, I disregard the inelegance of the motion and in the interest of substantive justice do hereby allow the revival of the appeal and the notice of motion dated 13th March 2026 as prayed. No order as to costs. DATED AND DELIVERED AT MOMBASA THIS 8TH DAY OF MAY, 2026.F. TUIYOTT........................JUDGE OF APPEALI certify that this is the true copy of the originalSignedDEPUTY REGISTRAR