https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1283

Nazamdin v Maina (Legal representative of the Estate of the Joseph Maina Kamau - Deceased) (Civil Appeal (Application) E007 of 2024) [2026] KECA 1283 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KECA 1283 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Civil Appeal (Application) E007 of 2024 Katwa Kigen, JA July 3, 2026 Between Nazaktali Nazamdin Applicant and Florence Wanja Maina (Legal representative of the Estate of the Joseph Maina Kamau - Deceased) Respondent (Being an application for leave for substitution and amendment of the Memorandum of Appeal against the Judgment of the High Court of Kenya at Muranga (N. Gacheru, J., delivered on 25th May, 2023 in H.C. Succ. Cause No. E162 of 2025 Environment & Land Case 37 of 2021 ) Ruling 1.The application before me is dated 10th April, 2026. The same is brought under Rule 102(1), (2), (3) and (4) of the Court of Appeal Rules, 2022. The applicant seeks in the main that the appeal against the respondent, the late Joseph Maina Kamau, who died on 1st March, 2024, be revived; that Florence Wanja Maina, the legal representative of the deceased, by virtue of a limited grant ad litem issued in Murang’a CM Misc. Succession Cause No. E162 of 2025, be substituted in his place as respondent so that the appeal may proceed to conclusion; that leave be granted to amend the memorandum of appeal and the amended memorandum be deemed as duly filed and served upon payment of requisite court fees; and that costs be in the cause. 2.The application is predicated on the grounds appearing on the face of the motion and those contained in the supporting affidavit of Nazaktali Nazamdini sworn on 10th April, 2026. To wit, the appeal abated upon the death of the respondent on 1st March, 2024. The applicant explains that the delay in substitution was occasioned by the unwillingness of the deceased’s beneficiaries to take out a grant, necessitating the filing of a citation. A limited grant ad litem was eventually issued to Florence Wanja Maina on 16th February, 2026, whereupon the applicant moved expeditiously to file the present application. He avers that revival of the appeal and substitution of the respondent are necessary for the matter to be concluded, and that no prejudice will be suffered by the proposed respondent. 3.The applicant, in further arguing his application, relies on his undated written submissions to submit that the appeal, which abated upon the death of the respondent on 1st March, 2024, ought to be revived. He contends that the delay in substitution was occasioned by the refusal of the deceased’s legal representative, Florence Wanja Maina, to take up the grant, thereby necessitating the filing of a citation and subsequent petition for a nominee. 4.He submits that a limited grant ad litem was eventually issued on 16th February, 2026 to Florence Wanja Maina, and upon obtaining the grant, he acted expeditiously in filing the present application.He argues that the delay was not deliberate but arose from unavoidable court processes. 5.The applicant further submits that the Court has discretion under Rule 102 of the Court of Appeal Rules to revive an appeal where sufficient cause is shown, citing authorities such as M’rintari vs. M’rintari [2025] KECA 2230 (KLR) and Njoroge & Another vs. Kamau (Deceased) [2024] KECA 806 (KLR). He maintains that the appeal should be revived, and Florence Wanja Maina substituted as respondent, as she holds the limited grant ad litem. He prays that the application be allowed, urging that no prejudice will be suffered by the proposed respondent. 6.The respondent, though no replying affidavit is on record, filed written submissions dated 10th June, 2026. He submits that the application dated 10th April, 2026 seeks three substantive prayers which, in his view, render it incompetent as the prayer for revival ought to be a stand-alone prayer under the Rules of this Court and cannot be accompanied by other prayers. He further submits that the respondent, Joseph Maina Kamau, died on 1st March, 2024, yet the application for substitution was only filed on 10th April, 2026, a period of two years and two months later, by which time the appeal had abated. He contends that no plausible explanation has been offered for the delay in seeking nomination or substitution, and that if urgency was warranted, the applicant ought to have moved the court under a certificate of urgency. 7.The respondent argues that the delay is inexcusable, the matter is dead by reason of abatement, and the applicant has not been candid with the court regarding when the application for grant was first filed. He maintains that the grant was procured well after one year from the death of the respondent, making the application an afterthought. 8.From the onset, before delving into the merits of the application, with the provocation of the respondents submissions as to the application being wrongly before court, the court finds that the application dated 10th April 2026 is properly before the Court under Rule 102(1)–(4) of this Court Rules, 2022, which provides that where an appeal has abated by reason of death of a party, the Court may, upon sufficient cause being shown, order its revival and permit substitution of the legal representative. Rule 102(3) expressly empowers the Court to revive an appeal if prevented by sufficient cause from continuing, while Rule 102(4) allows the Court to impose terms as to costs or otherwise. In addition, Rule 4 of the Court of Rules, 2022 vests the Court with discretion to extend time for the doing of any act authorized or required by the Rules, provided sufficient cause is demonstrated. 9.In the present case, the respondent, Joseph Maina Kamau, died on 1st March, 2024. The appeal abated one year later, on 1st March, 2025. The applicant explains that the delay in substitution was occasioned by the unwillingness of the deceased’s beneficiaries to petition for a grant, necessitating the filing of a citation. A limited grant ad litem was eventually issued to Florence Wanja Maina on 16th February, 2026, whereupon the applicant moved expeditiously to file the instant application. The Court is persuaded that the delay was not deliberate but arose from unavoidable court processes, and that upon issuance of the grant, the applicant acted promptly. 10.The jurisprudence of this Court supports the applicant’s position. In M’rintari vs. M’rintari (supra) the Court held that revival of an appeal under Rule 102 is a discretionary remedy, and that unavoidable procedural delays in obtaining representation constitute sufficient cause. Similarly, in Njoroge & Another vs. Kamau (Deceased (supra) the Court emphasized that revival and substitution are necessary to ensure that disputes are determined on their merits rather than defeated by technicalities. Further, in Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi [1999] 2 EA 231, though decided under the former Rules, the Court underscored that extension of time under Rule 4 is a matter of judicial discretion, exercised upon consideration of length of delay, reason for delay, chances of success of the intended appeal, and degree of prejudice to the respondent. 11.Applying these principles, the Court finds that sufficient cause has been demonstrated. The delay was explained, the applicant acted diligently once the grant was issued, and no prejudice has been shown that would be suffered by the proposed respondent. Further, there is a need for caution not to confer the benefit of closing the appeal on the party that defaulted to seek letters of administration.It is observed that, on the contrary, revival and substitution will facilitate determination of the appeal on its merits, in line with Article 159(2)(d) of the Constitution of Kenya, 2010, which enjoins courts to administer justice without undue regard to technicalities, and the overriding objective under sections 3A and 3B of the Appellate Jurisdiction Act. 12.Accordingly, the Court allows the application dated 10th April, 2026. The appeal is hereby revived; Florence Wanja Maina, holder of the limited grant ad litem issued in Murang’a CM Misc. Succession Cause No. E162 of 2025 is substituted as the respondent in place of the late Joseph Maina Kamau; leave is granted to amend the memorandum of appeal, and the amended memorandum shall be deemed duly filed and served upon payment of the requisite court fees; and costs shall be in the cause.Orders accordingly. DATED AND DELIVERED AT NYERI THIS 3RD DAY OF JULY, 2026.KATWA KIGEN K. J.......................................JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR