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Court of AppealDismissedNakuru Court of Appeal Civil Appeal No. 16 of 2019 (application dated 8th April 2025)

Resma Commercial Agencies v Ngata (Suing as the Legal Represetative of the Estate of Leah Wangui Ngata - Deceased) & another (Civil Appeal (Application) 16 of 2019) [2025] KECA 1398 (KLR)

Court of Appeal of Kenya
31 July 2025
888 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to revive an appeal that automatically died because no one substituted a deceased party within twelve months of the death.

What this practically means

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Executive summary

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This is a single-judge ruling of the Court of Appeal at Nakuru (Kiage, JA) dismissing a motion dated 8th April 2025 brought by Resma Commercial Agencies, the appellant in Civil Appeal No. 16 of 2019, seeking revival of an appeal that had abated against the 2nd respondent, Francis Ngata Kingori, who died approximately two years before the appeal was heard on 12th June 2024. The applicant also sought substitution of the deceased with Joel Karumba Ngata, the administrator of the deceased's estate. The court analysed Rule 102 of the Court of Appeal Rules, 2022, holding that substitution must be sought within twelve months of a party's death, failing which the appeal abates automatically. Revival under Rule 102(3) is exceptional discretionary relief requiring proof that the legal representative was prevented by sufficient cause from continuing the appeal; flimsy excuses or silence cannot suffice. The court also clarified that no separate enlargement-of-time application is necessary, as Rule 102 has a built-in delay mechanism. On the facts, the supporting affidavit gave no reason whatsoever - not an iota of evidence - as to why the legal representative, who was already a party to the appeal, failed to continue it within the twelve-month window. The discretion therefore could not be exercised favourably. The application was dismissed with no order as to costs, meaning the appeal remains abated against the 2nd respondent and no substitution was effected.

Questions the Court framed

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

  1. 1.Whether the applicant proved that the legal representative was prevented by sufficient cause from continuing the appeal within twelve months before it abated, so as to warrant revival of the abated appeal under Rule 102(3)

Key legal issues

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01

Conditions for revival of an appeal abated under Rule 102(3) of the Court of Appeal Rules, 2022

Holding

Revival is exceptional discretionary relief available only upon proof that the legal representative was prevented by sufficient cause from continuing the appeal; absent any evidentiary basis for that cause, the discretion cannot be exercised in favour of revival

Reasoning

Rule 102(1) permits substitution on the application of any interested person after a party's death, but Rule 102(2) deems the appeal abated if no application is made within twelve months of death. Rule 102(3) then allows revival only if it is proved that the legal representative was prevented by sufficient cause. The court held that this requires positive evidence of why continuation did not occur; mere assertion or silence cannot satisfy the threshold, since flimsy excuses or no reason at all would do violence to the rule. On the affidavit material, no reason whatsoever was offered, so the application failed.

p. 3
02

Whether an application for enlargement of time is necessary for substitution after a party's death

Holding

No separate application for enlargement of time is needed because Rule 102 contains a built-in mechanism dealing with delay through the twelve-month abatement period and the revival procedure

Reasoning

The applicant's motion appeared to conflate revival with enlargement of time. The court clarified that Rule 102 itself governs the timing of substitution: substitution is to be sought within twelve months of death, failing which abatement occurs automatically, and the remedy thereafter is an application to revive under Rule 102(3) with proof of sufficient cause. Thus no enlargement-of-time application is required or relevant.

p. 2

Legal principles established

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  • Upon the death of a party to an appeal, substitution of the legal representative must be obtained within twelve months, failing which the appeal abates by operation of law
  • Revival of an abated appeal is not automatic; the applicant must prove that the legal representative was prevented by sufficient cause from continuing the appeal, and flimsy excuses or no reason at all cannot suffice

Court orders

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  1. 1.The application dated 8th April 2025 seeking revival of the abated appeal and substitution is dismissed in its entirety
  2. 2.No order as to costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Rule 102 of the Court of Appeal Rules, 2022

Relief refused

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Revival of the abated appeal against the 2nd respondent

No evidence was offered showing why the legal representative was prevented from continuing the appeal within the twelve months before abatement; the sufficiency-of-cause threshold was not met

p. 3

Substitution of the deceased 2nd respondent with the Administrator of his Estate

The substitution sought could only follow revival of the abated appeal, which was refused

Costs

No order as to costs

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.

An appeal shall not abate on the death of the appellant or respondent but the Court shall, on the application of any interested person, cause the legal representative of the deceased person to be made a party in place of the deceased.
p. 2Rule 102(1) - substitution on death of a party
If no application is made under sub-rule (1) within twelve months from the date of the death of the appellant or respondent, the appeal shall abate.
p. 2Rule 102(2) - abatement after twelve months
it must be shown why he was not able to do so, and fiimsy excuses or no reason at all, cannot sufice, without doing violence to the rule.
p. 3Sufficient cause threshold for revival
Absent any showing of why there was no continuation with the appeal in the twelve months before it abated by operation of law, I am unable to exercise my discretion favorably to revive the appeal.
p. 3Discretion refused on the facts
In the result, I find no merit in the application and the same is dismissed. I make no order as to costs.
p. 3Final orders and costs

Issues in the judgment

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minor

The judgment contains typographical errors ('fiimsy', 'sufice', 'suficient'), and the applicant's name is recorded as 'Resma Commercial Agencies (sic)'; the supporting affidavit is described as 'expressed as sworn on the said 8th April 2025', an ambiguous formulation

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, "Resma Commercial Agencies v Ngata (Suing as the Legal Represetative of the Estate of Leah Wangui Ngata - Deceased) & another (Civil Appeal (Application) 16 of 2019) [2025] KECA 1398 (KLR)", Case Analysis (2025). Nakuru Court of Appeal Civil Appeal No. 16 of 2019 (application dated 8th April 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1398/eng@2025-07-31

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