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Court of AppealAllowedNyeri Civil Appeal Application No. E022 of 2024

Ali v Muthuri & 7 others; Mutwiri (Applicant) (Civil Appeal (Application) E022 of 2024) [2025] KECA 571 (KLR)

Court of Appeal of Kenya
28 March 2025
SKS. ole Kantai
365 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal allowed a deceased party's daughter, holding a limited grant ad litem, to take her mother's place in a pending appeal.

What this practically means

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Executive summary

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This was a single-judge application before the Court of Appeal at Nyeri under rule 102(1) of the Court of Appeal Rules, seeking the substitution of the deceased 1st respondent, Saina Kalimi George, with Emily Nkatha Mutwiri in Nyeri Civil Appeal No. E022 of 2024 (Musa Mbaabu Ali v Saina Kalimi George & 8 Others). The applicant, Musa Mbaabu Ali, who is the appellant in the underlying appeal, supported the application through a supporting affidavit sworn by Emily Nkatha Mutwiri, the deceased's daughter. She explained that the deceased had been the 1st respondent and an administrator of the estate of Mbaabu M'Ibutu, that she had been issued with a limited grant of letters of administration ad litem for purposes of prosecuting the appeal on behalf of the deceased's estate, and that the family had deliberated and agreed that she be substituted in the deceased's place. A certificate of death and a copy of the limited grant were exhibited. The court recorded that hearing notice dated 7th March 2025 had been served on counsel for the parties by email, directing the filing of written submissions, but no submissions were filed. Satisfied by the certificate of death, the limited grant, and the family's agreement, Kantai JA held that the family's wishes should be fulfilled, allowed the motion, and made no order as to costs. The judgment was dated and delivered at Nyeri on 28th March 2025. This was a procedural ruling; no substantive appeal issue was determined and no precedent-binding proposition was articulated.

Questions the Court framed

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

  1. 1.Whether Emily Nkatha Mutwiri should be substituted in place of the deceased 1st respondent, Saina Kalimi George, in the appeal

Key legal issues

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01

Substitution of a deceased party in a pending appeal

Holding

Where a party to an appeal dies and a family member holds a limited grant of administration ad litem with the family's agreement, substitution should be allowed to give effect to the family's wishes.

Reasoning

The court noted the certificate of death confirming the demise of the 1st respondent, the limited grant ad litem issued to the applicant's daughter, and the family's deliberation and agreement that Emily Nkatha Mutwiri take the deceased's place in the appeal. The court found the application properly served by hearing notice and, seeing no opposition or submissions, held that the family's decision should be honoured and allowed the motion.

p. 2

Legal principles established

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    Court orders

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    1. 1.Emily Nkatha Mutwiri substituted in place of the deceased 1st respondent Saina Kalimi George
    2. 2.No order as to 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
    Rule 102(1) of the Court of Appeal Rules

    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 think that it is in order that the wishes of the family be fulfilled. I allow the Motion and make no order on costs.
    p. 2Disposition - substitution of deceased party allowed
    The applicant is the daughter of the deceased who has been issued with grant of administration ad litem limited to the prosecution of Nyeri Civil Appeal No. E022 of 2024 on behalf of the estate of the deceased
    p. 1Basis for substitution - limited grant ad litem

    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, "Ali v Muthuri & 7 others; Mutwiri (Applicant) (Civil Appeal (Application) E022 of 2024) [2025] KECA 571 (KLR)", Case Analysis (2025). Nyeri Civil Appeal Application No. E022 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/571/eng@2025-03-28

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