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Court of AppealAllowedCivil Application E039 of 2024

Mengich v Cherono & 2 others (Civil Application E039 of 2024) [2025] KECA 1669 (KLR)

Court of Appeal
21 October 2025
Mohamed Abdulahi WarsameM A Warsame
205 words in judgment
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The bottom line

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Kenya's Court of Appeal allowed a deceased appellant's family members, holding a grant ad litem, to take over and continue her pending appeal.

What this practically means

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Executive summary

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This is a short consent order delivered by M A Warsame, JA, in the Court of Appeal at Nakuru on 21 October 2025 in Civil Application E039 of 2024. The applicant, Mary Jemutai Mengich, sought to be substituted, together with Edwin Kipruto Tomno, as legal representatives of the deceased appellant, Rebecca Chepkoech Tomno aka Rebecca Wesley Tomno, in the pending appeal. The parties recorded a consent dated 23rd June 2025, which the court adopted as its order. By that consent, the deceased appellant was substituted with her legal representatives, who had obtained a grant ad litem in Nakuru ad litem Cause E389 of 2024, and the legal representatives were permitted to continue prosecuting Civil Appeal No. E039 of 2024 on behalf of the deceased appellant. The court made no orders as to costs. There were no contested issues, no determination of the substantive appeal, no citation of authorities or statutes, and no decision of a lower court was under review by this order. The order is purely procedural and inter-partes by consent, so it sets out no binding propositions of law for lower courts. Its practical significance is that the appeal remains alive and will proceed with the substituted appellants.

Questions the Court framed

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

  1. 1.Whether the deceased appellant should be substituted with her legal representatives holding a grant ad litem
  2. 2.Whether the legal representatives should be allowed to continue prosecuting Civil Appeal No. E039 of 2024 on behalf of the deceased appellant

Key legal issues

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01

Substitution of a deceased appellant by legal representatives

Holding

By consent, a deceased appellant may be substituted with her legal representatives who have obtained a grant ad litem, and those representatives may continue the appeal on the deceased's behalf.

Reasoning

The order was made by consent of the parties, adopting a consent dated 23rd June 2025. The court exercised its procedural power to effect substitution where the substituted persons had obtained a grant ad litem in Nakuru ad litem Cause E389 of 2024, enabling the appeal to survive the death of the appellant.

p. 1

Legal principles established

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    Court orders

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    1. 1.The consent of the parties dated 23rd June 2025 adopted as an order of the court
    2. 2.The deceased appellant, Rebecca Chepkoech Tomno aka Rebecca Wesley Tomno, substituted with her legal representatives Mary Jemutai Mengich and Edwin Kipruto Tomno
    3. 3.The said legal representatives allowed to proceed with prosecution of Civil Appeal No. E039 of 2024 on behalf of the deceased appellant
    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 A WarsameJA
    Currently serving
    majority

    Wrote the judgment

    Jurisdiction invoked
    Inherent procedural jurisdiction of the Court of Appeal to regulate its own proceedings by consent; substitution of a deceased appellant by legal representatives holding a grant ad litem (Nakuru ad litem Cause E389 of 2024)

    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.

    The consent by the parties dated 23rd June 2025 is hereby adopted as an order of this court
    p. 1adoption of consent as order of the court
    This honourable court be and is hereby pleased to allow the said legal representatives to proceed with prosecution of Civil Appeal No. E039 of 2024 on behalf of the deceased appellant.
    p. 1continuation of appeal by legal representatives
    No orders as to costs.
    p. 1final orders - costs

    Issues in the judgment

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    minor

    Document is a short consent order certified by the Deputy Registrar; no underlying judgment, appeal record, or decision of a lower court is reproduced, so appeal-from details cannot be recorded.

    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, "Mengich v Cherono & 2 others (Civil Application E039 of 2024) [2025] KECA 1669 (KLR)", Case Analysis (2025). Civil Application E039 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1669/eng@2025-10-21

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