Munene (Deceased) & another v Kang'ata; Muna (Applicant) (Civil Appeal (Application) 97 of 2018) [2025] KECA 594 (KLR)
The bottom line
#If a party to a Kenyan appeal dies and no substitution is filed within twelve months, the appeal dies automatically and must be revived before anyone can be substituted.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the deceased 1st appellant's appeal abated under rule 102(2) of the Court of Appeal Rules, 2010 for failure to seek substitution within twelve months of death
- 2.Whether substitution of a deceased appellant can be ordered where the appeal has already abated and no application for revival under rule 102(3) has been made
Key legal issues
#Effect of failure to seek substitution within twelve months of a party's death
The appeal abates automatically by operation of rule 102(2); abatement is not discretionary.
Rule 102(1) requires an application by an interested party for the legal representative to be made a party in place of the deceased. Rule 102(2) provides that if no such application is made within twelve months of death, the appeal abates. The 1st appellant died on 26th July 2021 and the application was not made until 28th May 2024, well beyond the twelve-month period, so the appeal stood abated.
Whether substitution can be ordered in respect of an abated appeal without a revival application
No. Once an appeal has abated, substitution cannot succeed without an application under rule 102(3) to revive the appeal; the applicant put the cart before the horse.
The court applied Said Sweilem Gheithan Saanum and Mumbi, JA.'s decision in Mungai v Mbugua, which held that where applicants seek substitution without seeking revival of an appeal that abated twelve months after death, there is no appeal in respect of which substitution can be ordered. Rule 102(3) offers a remedy — revival upon proof of sufficient cause — but it must actually be invoked; the applicant did not do so.
Legal principles established
#- Where a party to an appeal dies and no application for substitution of the legal representative is made within twelve months, the appeal abates by operation of rule 102(2) of the Court of Appeal Rules.
- Substitution of a deceased party cannot be granted in respect of an appeal that has abated; the applicant must first seek revival of the abated appeal under rule 102(3), though the two applications may be made simultaneously.
Court orders
#- 1.The application dated 28th May 2024 is struck out
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 3A and 3B of the Appellate Jurisdiction Act and Rule 99(1) of the Court of Appeal Rules, 2010
Relief refused
#Substitution of the deceased 1st appellant with the applicant as legal representative of his estate
The appeal abated by operation of rule 102(2) because no substitution application was made within twelve months of death, and rule 102(3) for revival was never invoked
Costs
No order as to costs (the application was struck out with no order as to costs)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
No application was made under rule 102(1) of this Court Rules within one year from the date of death and therefore by operation of rule 102(2) of the rules of this Court, the appeal by the 1st appellant abated.
As this sub-rule has not been invoked, and as the appeal has already abated, the substitution of the 1st appellant, without an application to revive the deceased’s appeal cannot succeed. I find that there is no appeal with respect to which an order for substitution can be made.
For the foregoing reasons, the application dated 28th May 2024 is incompetent and is accordingly struck out with no order as to costs.
Issues in the judgment
#Mismatch between the respondent named in the application (Francis Murage Kang'ata) and the respondent in the appeal (Salome Warware), with no indication of substitution; the court noted this but did not resolve it
The application was filed under Rule 99(1) of the 2010 Rules, which the judgment itself notes were revoked by the Court of Appeal Rules, 2022 (now Rule 102(1))
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Munene (Deceased) & another v Kang'ata; Muna (Applicant) (Civil Appeal (Application) 97 of 2018) [2025] KECA 594 (KLR)", Case Analysis (2025). Nyeri Court of Appeal Civil Appeal No. 97 of 2018 (Application dated 28th May 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/594/eng@2025-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.