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Court of AppealPartially AllowedNot stated in the judgment

Ngine & 4 others v Njoka & another (Civil Appeal (Application) E141 of 2022) [2025] KECA 562 (KLR)

Court of Appeal of Kenya
28 March 2025
SKS. ole Kantai
495 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~2 min to read original · ~4 min brief

The bottom line

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The Court of Appeal revived an appeal that had died when a substitution deadline lapsed, accepting an elderly applicant's honest explanation for the delay.

What this practically means

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Executive summary

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This was a Chamber application before the Court of Appeal at Nyeri, decided by S. ole Kantai, JA, under sections 3A and 3B of the Appellate Jurisdiction Act and rules 4, 87 and 102 of the Court of Appeal Rules. The applicants sought revival of their appeal, which abated on 9th June, 2024 upon the lapse of 60 days ordered by the Court on 9th April, 2024, and the substitution of Mary Nthuraku Njeru and Inyasio Mwaniki Ngari as legal representatives of the Estate of Francis Njeru, the deceased 2nd respondent. The background was that when the appeal came up for hearing on 9th April, 2024, counsel indicated that several parties had died; the Court directed the appellants to file a substitution application within 60 days. The appellants did not comply within that period, because the deponent, a person of advanced age, could not obtain the relevant information, including the Certificate of Confirmation of Grant issued on 8th April, 2023, in time. The respondents did not file submissions despite notice. The Judge accepted the explanation as reasonable and allowed the application, reviving the appeal and substituting the two personal representatives of the deceased 2nd respondent. No order was made on costs. The decision is a single-judge procedural ruling and turns on the court's discretion to revive an abated appeal where a reasonable explanation for the delay is offered.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appeal that abated on 9th June, 2024 following lapse of the 60 days ordered on 9th April, 2024 should be revived
  2. 2.Whether Mary Nthuraku Njeru and Inyasio Mwaniki Ngari should be substituted as representatives of the Estate of Francis Njeru (deceased), the 2nd respondent

Key legal issues

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Revival of an appeal that abated on lapse of the period ordered for substitution of a deceased party

Holding

The application to revive was allowed because the applicant gave a reasonable explanation for the delay - being of advanced age, he was unable to obtain the grant and relevant information within the 60 days ordered, but later obtained a Certificate of Confirmation of Grant identifying the deceased's personal representatives.

Reasoning

The appeal abated automatically on 9th June, 2024 when the 60 days ordered on 9th April, 2024 for filing a substitution application lapsed. The deponent explained that his advanced age prevented him gathering the necessary information in time, and he subsequently obtained the Certificate of Confirmation of Grant issued on 8th April, 2023 appointing the two personal representatives. The court accepted this as a reasonable explanation and revived the appeal in the interests of justice, substituting the representatives.

p. 2

Legal principles established

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  • An abated appeal may be revived where the applicant offers a reasonable explanation for failing to seek substitution within the time ordered, in the interests of justice

Court orders

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  1. 1.The application is allowed and the appeal is revived
  2. 2.Mary Nthuraku Njeru and Inyasio Mwaniki Ngari are appointed as the representatives of the Estate of Francis Njeru (deceased) and substituted as parties
  3. 3.No order on costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

SK
majority

Wrote the judgment

Jurisdiction invoked
Section 3A and 3B of the Appellate Jurisdiction Act; rules 4, 87 and 102 of the Court of Appeal Rules

Relief refused

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Costs of the application

The court made no order on costs

p. 2

Costs

No order on costs - each party bears their own costs of the application

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I allow the application by reviving the appeal; Mary Nthuraku Njeru and Inyasio Mwaniki Ngari will be the representatives of the Estate of Francis Njeru (deceased). I make no order on costs.
p. 2Final orders - revival and substitution
I think that this is a reasonable explanation and it is fair that I allow the application.
p. 2Reasonable explanation for abatement

Issues in the judgment

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minor

The coram lists a single Judge of Appeal; there is no bench listing or appeal number in the certified copy supplied, and the case number is not stated

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ngine & 4 others v Njoka & another (Civil Appeal (Application) E141 of 2022) [2025] KECA 562 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/562/eng@2025-03-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.