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Court of AppealAllowedApplication dated 30th November 2020 (Civil Appeal, Nakuru)

Lemein v Lanke & 2 others (Civil Application 64 of 2016) [2025] KECA 1667 (KLR)

Court of Appeal of Kenya
21 October 2025
570 words in judgment
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The bottom line

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Kenya's Court of Appeal allowed a son to replace his deceased father as a party in a land appeal because he applied 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 by M. Warsame, JA, on an application dated 30th November 2020 by Simon Sayialel Lanke seeking substitution as the 1st respondent in place of his deceased father, Lekinyot Ole Lanke, under Rule 102 of the Court of Appeal Rules. The deceased had successfully challenged proceedings of a Land Disputes Tribunal and the Narok Senior Principal Magistrate's Court concerning land parcel CIS-Mara/Oldonyo Rasha/377 (approximately 50 acres) in the Environment and Land Court at Nakuru. The applicant appealed to the Court of Appeal, but the deceased died on 24th February 2020 while judgment was reserved. On 9th October 2020 the Court dismissed the appeal with costs to the deceased, and the applicant filed a notice of appeal to the Supreme Court on 17th October 2020. The applicant sought substitution for three reasons: to have the awarded costs assessed and recovered, to enable the estate to execute the ELC decree, and to oppose any applications relating to the intended Supreme Court appeal. The judge found the death incontrovertibly established, noted the limited grant of administration pendente lite issued by the High Court at Narok on 4th November 2020, and held the application timely under Rule 102(2), having been filed within twelve months of death and about three weeks after the grant. The application was allowed, the applicant substituted as 1st respondent for all purposes, with no orders as to costs. Notably, the ruling was delivered on 21st October 2025, almost five years after the application was filed, without explanation. No authorities were cited.

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 should be substituted as the 1st respondent in place of his deceased father pursuant to Rule 102 of the Court of Appeal Rules
  2. 2.Whether the application was made within the twelve-month period prescribed by Rule 102(2)
  3. 3.Whether the applicant demonstrated his status as legal representative of the deceased

Key legal issues

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01

Substitution of a deceased party's legal representative under Rule 102

Holding

Where death is established, the applicant holds a limited grant pendente lite, and the application is made within twelve months of death, substitution shall be granted in the Court's discretion under Rule 102(1).

Reasoning

The court found the death incontrovertibly established and the applicant's status as legal representative demonstrated through a limited grant of administration pendente lite issued by the High Court at Narok on 4th November 2020 for the purpose of continuing the proceedings. The application, filed 30th November 2020, fell well within the twelve-month period prescribed by Rule 102(2), about three weeks after the grant, showing diligence. The court was satisfied this was a proper case to exercise its discretion.

p. 2
02

Timeliness under Rule 102(2)

Holding

An application filed within twelve months of the deceased's death does not cause the appeal to abate; the appeal abates only if no application is made within that period.

Reasoning

The deceased died on 24th February 2020 and the substitution application was filed on 30th November 2020, within the prescribed twelve-month window. The court treated this as demonstrating diligence on the part of the estate's representatives, particularly as the application followed promptly, approximately three weeks, after the limited grant was obtained on 4th November 2020.

p. 2

Legal principles established

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  • An appeal before the Court of Appeal does not abate on the death of a party where an application to substitute the legal representative is made within twelve months of the date of death.

Court orders

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  1. 1.The application is allowed
  2. 2.The name of the 1st respondent, Lekinyot Ole Lanke (deceased), is substituted with that of Simon Sayialel Lanke, suing as the legal representative of the estate of Lekinyot Ole Lanke (deceased)
  3. 3.The substituted 1st respondent is deemed to be a party to these proceedings for all purposes
  4. 4.No orders as to costs

The bench

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

Mohamed Abdulahi Warsame
M. WarsameJA
Currently serving
majority

Wrote the judgment

On appeal from
Environment and Land Court at Nakuru
Jurisdiction invoked
Rule 102 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.

In the result, the application is hereby allowed. The name of the 1st respondent, Lekinyot Ole Lanke (deceased), is hereby substituted with that of Simon Sayialel Lanke, suing as the legal representative of the estate of Lekinyot Ole Lanke (deceased).
p. 2Final orders - substitution granted
The substituted 1st respondent is deemed to be a party to these proceedings for all purposes.
p. 2Status of substituted respondent
The rule further stipulates that if no application is made within twelve months from the date of death, the appeal shall abate.
p. 2Abatement rule under Rule 102(2)

Issues in the judgment

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minor

The ruling is dated 21st October 2025, nearly five years after the application was filed on 30th November 2020; the judgment gives no explanation for this long interval.

minor

The application sought substitution of a respondent after this Court had already delivered judgment dismissing the appeal and awarded costs to the deceased respondent; the judgment does not address whether post-judgment substitution on appeal lies, only that Rule 102 applies.

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, "Lemein v Lanke & 2 others (Civil Application 64 of 2016) [2025] KECA 1667 (KLR)", Case Analysis (2025). Application dated 30th November 2020 (Civil Appeal, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1667/eng@2025-10-21

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