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Court of AppealPartially AllowedCivil Application No. E031 of 2025 (Motion dated 5th February 2020)

Chege & 2 others (Administrators of the Estate of Chege Kirumba - Deceased) v Wakigo & 2 others (Civil Application 22 of 2020) [2026] KECA 233 (KLR)

Court of Appeal of Kenya
13 February 2026
1,382 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal struck out a land appeal because the opposing party had died and the suit had legally ceased to exist.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Kairu, M'inoti and Nyamweya, JJ.A) delivered on 13th February 2026 on a motion dated 5th February 2020 by Simon Machieya Chege and another, administrators of the estate of the late Salome Wangui Chege, seeking to strike out Daniel Kahara Wakigo's notice of appeal dated 13th December 2019 under rules 42 and 84 of the Court of Appeal Rules, 2010. The appeal is a second appeal from an ELC ruling of 11th December 2019 (Komingoi, J.) which struck out Wakigo's appeal against a subordinate court ruling of 10th January 2018 declining to reinstate his suit after a delay of over 18 years. The applicants argued that no appeal lay because the respondents did not exist in law: Wangui died on 15th June 1999, was never substituted, and the suit abated on 14th June 2000; and the Public Trustee was removed as administrator of the estate on 4th November 2013. Wakigo opposed, contending the application was out of time and that leave to appeal obtained from the ELC cured the defects. The Court held that the Christmas recess must be discounted in computing the 30-day period, so the application was in time; that leave to appeal cannot revive an abated suit, which requires an express order under Order 24 rule 7; and that an abated suit ceases to exist in law, so no suit capable of determination or appeal existed. The Court allowed the motion and struck out the notice of appeal with costs to the applicants. The judgment binds lower courts on the effect of abatement and the impossibility of appealing against non-existent parties.

Questions the Court framed

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

  1. 1.Whether the application to strike out the notice of appeal was incompetent for being filed outside the 30-day period in rule 84, accounting for the Christmas recess
  2. 2.Whether an abated suit can be revived by a mere grant of leave to appeal
  3. 3.Whether an appeal lies against parties who do not exist in law (a deceased party never substituted and a Public Trustee removed as administrator)

Key legal issues

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01

Effect of abatement of a suit under Order 24 rule 3 of the Civil Procedure Rules

Holding

Where an application to substitute a deceased party is not made within one year of death, the suit abates against that party and ceases to exist in law unless revived under Order 24 rule 7. The suit against Wangui abated on 14th June 2000 and was never revived.

Reasoning

Wangui died on 15th June 1999 and was never substituted. By Order 24 rule 3, the suit abated one year later. Order 24 rule 7 permits revival, but no application to revive was made. Authorities cited by the Court establish that an abated suit ceases to exist in law unless and until revived by court order. Consequently no suit capable of determination or appeal existed at the time of the impugned rulings.

p. 3
02

Standing of the Public Trustee

Holding

The Public Trustee, having been removed as administrator of the deceased's estate on 4th November 2013, had no standing in the appeal.

Reasoning

The Public Trustee once administered the deceased's estate but was removed on 4th November 2013, and the present applicants were appointed administrators in its place. Citing Trouistik Union Insurance v Jane Mbeyu, the Court held that the Public Trustee's mandate had ceased and it therefore had no standing in the appeal.

p. 3
03

Timeliness of the striking-out application

Holding

The application, filed on 5th February 2020 after service of the notice of appeal on 17th December 2019, was within the 30 days prescribed by rule 84 once the Christmas recess was discounted.

Reasoning

A casual computation suggested the application was out of time, but the Court held the recess period from 21st December to 13th January must be discounted, bringing the filing within the prescribed 30-day window. The competency objection was therefore rejected.

p. 2

Legal principles established

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  • An appeal cannot lie against a party who does not exist in law; where a defendant died and was never substituted, and the suit abated and was never revived, any appeal arising from that suit must fail and the notice of appeal may be struck out.
  • A grant of leave to appeal does not revive an abated suit; revival can only be by an express court order made within the prescribed time.
  • The Christmas recess (21st December to 13th January) is discounted in computing the 30-day period for applying to strike out a notice of appeal under rule 84.

Court orders

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  1. 1.The applicants' motion dated 5th February 2020 is allowed
  2. 2.Wakigo's notice of appeal dated 13th December 2019 is struck out
  3. 3.Costs of the application are awarded to the applicants

The bench

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

majority
majority
majority
On appeal from
Environment & Land Court at Nairobi
null
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal (ruling on a motion under rules 42 and 84 of the Court of Appeal Rules, 2010 to strike out a notice of appeal)

Relief refused

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Wakigo's defence of the notice of appeal on the basis that leave to appeal obtained from the ELC cured the defects

A leave to appeal cannot revive an abated suit; revival requires a specific court order made in time

p. 2

Costs

Costs of the application to the applicants (the motion to strike out was allowed 'with costs to the applicants').

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.

Accordingly, we allow the same and strike out Wakigo's notice of appeal dated 13th December 2019, with costs to the applicants. It is so ordered.
p. 3Final orders - striking out notice of appeal
The efiect of an abated suit is that it ceases to exist in law, unless and until it is revived.
p. 3Effect of abatement
An abated suit can only be revived by an order of the court consequent upon an application for that express purpose and made with the prescribed time.
p. 2Revival of abated suit
we are persuaded that by the date of the impugned ruling of the subordinate court which led to the first and now the second appeal, there was no suit capable of being determined or appealed.
p. 3No appeal lies against non-existent parties

Issues in the judgment

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minor

Application heading misdates the notice of appeal as 11th December 2019 whereas the actual date is 13th December 2019

minor

Typographical error in the source text ('proscribed' instead of 'prescribed') in the passage on the 30-day period

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, "Chege & 2 others (Administrators of the Estate of Chege Kirumba - Deceased) v Wakigo & 2 others (Civil Application 22 of 2020) [2026] KECA 233 (KLR)", Case Analysis (2026). Civil Application No. E031 of 2025 (Motion dated 5th February 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/233/eng@2026-02-13

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