Agnes Jerotich Toloin (suing As The Legal Representative of The Estate of The Late Jonah Kipsaina) v Rael Tarlock Sawe Philip Kiprock Sawe Francis Kipkemboi Sawe (all Suing As The Legal Representatives of The Late David Cheptum Sawe) & 1 other
The bottom line
#A late substitution application cost the applicant their place in an appeal: the Court of Appeal requires substitution of a deceased party within twelve months of death, no exceptions taken.
What this practically means
#Executive summary
#Key legal issues
#Whether the substitution application was filed within the statutory twelve-month window
The application was filed out of time; the twelve months expired on 7th February 2023 (Christmas recess excluded) and the application was filed on 21st February 2023, so the appeal had already abated
Rule 102 of the Court of Appeal Rules 2022 requires an application for substitution of a deceased party's legal representative to be made within twelve months of death. The 2nd respondent died on 14th January 2022; allowing for the exclusion of the Christmas recess, the deadline was 7th February 2023. The application filed on 21st February 2023 was therefore out of time, and the appeal stood abated when it was filed.
The correct legal basis for substitution of a deceased party on appeal
Rule 102 of the Court of Appeal Rules 2022, not the Civil Procedure Rules provisions cited by the applicant, governs substitution of a deceased party in the Court of Appeal
The applicant anchored the motion on Article 50 of the Constitution, Sections 1A and B of the Civil Procedure Act and Order 24 Rule 3 of the Civil Procedure Rules. The Court held these were not the correct provisions; substitution in an appeal before the Court of Appeal is governed by the Court of Appeal Rules, specifically Rule 102 on death of a party to an appeal.
Legal principles established
#- An appeal does not abate on the death of a party, but an application to substitute the legal representative must be made within twelve months of the death, failing which the appeal abates
- The correct provision governing substitution of a deceased party in the Court of Appeal is Rule 102 of the Court of Appeal Rules 2022, not Order 24 Rule 3 of the Civil Procedure Rules
Court orders
#- 1.The application dated 21st February 2023 seeking substitution of the applicant in place of the deceased 2nd respondent is dismissed
- 2.No order as to costs
- On appeal from
- null
- null
- Jurisdiction invoked
- Article 50 of the Constitution; Section 1A & B of the Civil Procedure Act; Order 24 Rule 3 of the Civil Procedure Rules; Rule 102 of the Court of Appeal Rules 2022 (as identified by the Court as the correct provision)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Agnes Jerotich Toloin (suing As The Legal Representative of The Estate of The Late Jonah Kipsaina) v Rael Tarlock Sawe Philip Kiprock Sawe Francis Kipkemboi Sawe (all Suing As The Legal Representatives of The Late David Cheptum Sawe) & 1 other", Case Analysis (2025). Eldoret Civil Appeal No. 93 of 2019 (substitution application, notice of motion dated 21st February 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1054/eng@2025-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.