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Court of AppealAllowedReference dated 25th September 2025 arising from Civil Appeal No. 258 of 2019 (Nyeri)

Kangangi v Iburi & 3 others (Civil Appeal (Application) 258 of 2019) [2026] KECA 265 (KLR)

Court of Appeal of Kenya
13 February 2026
2,178 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal revived a family appeal that had 'died' after the appellant passed away, ruling the family showed good reason for the delay in continuing the case.

What this practically means

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Executive summary

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The applicants, legal representatives of the deceased appellant Jacob Kabuto Mwirigi, sought revival of their abated appeal (Nyeri Civil Appeal No. 258 of 2019) and substitution under rule 102 of the Court of Appeal Rules, 2022. J Ngugi JA, in a ruling of 19th September 2025, dismissed the application, holding that the appeal abated on 10th December 2021 and that the unexplained gap of one year and three months before the first application of 31st March 2023 was fatal, counsel's blunders not curing the delay. On a reference under rule 57(1)(b) before a full bench (S. ole Kantai, Nyamweya and Ali-Aroni, JJA), the applicants argued sufficient cause had been shown: the misplacement of the High Court/ELC file and an inadvertent filing of the substitution application before the wrong forum, as well as unequal treatment compared to the respondents, who were substituted after similar delays. The full bench restated the principle from John Koyi Waluke that it may interfere with a single Judge's discretion only where a relevant matter was ignored, an irrelevant matter considered, the law or evidence misapprehended, or the decision plainly wrong. Finding that the single Judge had overlooked the applicants' uncontroverted application filed in the ELC on 7th June 2022, which explained the impugned gap, and had failed to consider the 2nd respondent's supporting averments and her own earlier substitution, the court allowed the reference, revived the abated appeal, substituted the applicants as legal representatives of the deceased appellant's estate, and, as a family-related dispute, made no order as to costs.

Questions the Court framed

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

  1. 1.Whether the full bench should interfere with the single Judge's exercise of discretion dismissing the application to revive the abated appeal and substitute the applicants as legal representatives of the deceased appellant

Key legal issues

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01

Test for interference by a full bench with a single Judge's discretionary decision on a reference

Holding

The full bench does not substitute its own discretion; it interferes only on the established grounds of error, and here the single Judge overlooked a relevant matter - the applicants' earlier application filed in the ELC on 7th June 2022 and the 2nd respondent's supporting submissions.

Reasoning

The court restated the Waluke test: the full bench interferes where the single Judge ignored a relevant matter, considered an irrelevant one, misapprehended the evidence or law, or was plainly wrong. The single Judge treated the 31st March 2023 application as the first defective application, overlooking the uncontroverted ELC application of 7th June 2022 that explained the gap, and did not consider the 2nd respondent's supporting averments. Had those matters been considered, the discretion might have been exercised differently, justifying interference.

p. 4
02

Revival of an abated appeal under rule 102 of the Court of Appeal Rules, 2022

Holding

An appeal abates where no application for substitution is made within 12 months of death, but a single Judge may revive it where sufficient cause for the delay is shown; on the full facts, sufficient cause was demonstrated here.

Reasoning

Rule 102 requires a substitution application within 12 months of death, failing which the appeal abates, but confers discretion to revive upon demonstration of sufficient cause. The appellant died on 10th December 2020 and the appeal abated on 10th December 2021. The applicants filed an application in the ELC on 7th June 2022 whose misplacement and the file transition to Nkubu explained the delay before the application of 31st March 2023, amounting to sufficient cause.

p. 4

Legal principles established

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  • A full bench may interfere with a single Judge's exercise of discretion only where the single Judge took into account an irrelevant matter, failed to take into account a relevant matter, misapprehended the evidence or law, or the decision is plainly wrong; it is not enough that the full bench would have reached a different result.

Court orders

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  1. 1.The applicants' reference dated 25th September 2025 is allowed and the single Judge's ruling of 19th September 2025 is set aside
  2. 2.The applicants' application dated 17th July 2025 is allowed
  3. 3.Nyeri Civil Appeal No. 258 of 2019, which had abated, is revived
  4. 4.Janice Gaceri Mwirigi and Kithinji Kimaita Mwirigi are substituted as legal representatives of the estate of the deceased Jacob Kabutu Mwirigi, the appellant
  5. 5.No order as to costs of the application dated 17th July 2025 or of the reference dated 25th September 2025

The bench

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

majority
majority
majority
On appeal from
Court of Appeal of Kenya (single Judge, J Ngugi JA)
Application dated 17th July 2025 in Civil Appeal No. 258 of 2019
Jurisdiction invoked
Rule 57(1)(b) of the Court of Appeal Rules, 2022 (reference from decision of a single Judge to a full bench)

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.

It is not enough, for example, to show the full court that had it been sitting in place of the single Judge, it would have arrived at a difierent result.
p. 3Limits on full-bench interference with a single Judge's discretion
If explanation for delay is the key that unlocks the discretion of the court, ofiering no explanation at all keeps the doors of judicial discretion firmly shut.
p. 2Sufficient cause and unexplained delay (single Judge's ruling quoted)
We accordingly allow the applicants' application dated 17th July 2025 and revive Nyr Civil Appeal No. 258 of 2019 which had abated, and in addition substitute Janice Gaceri Mwirigi & Kithinji Kimaita Mwirigi as the legal representatives of the estate of the deceased Jacob Kabutu Mwirigi, the appellant in the said appeal.
p. 4Final orders - revival and substitution
as this is a family related dispute, we make no order as regards the costs of the application dated 17th July 2025, or of the reference dated 25th September 2025.
p. 4Costs order

Issues in the judgment

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minor

Typographical/date inconsistencies in the judgment: the 2nd respondent's replying affidavit is dated 28th July 201 (incomplete year) and the deceased is referred to variously as Jacob Kabuto Mwirigi, Jacob Kabutu Kangangi and Jacob Kabutu Mwirigi.

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, "Kangangi v Iburi & 3 others (Civil Appeal (Application) 258 of 2019) [2026] KECA 265 (KLR)", Case Analysis (2026). Reference dated 25th September 2025 arising from Civil Appeal No. 258 of 2019 (Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/265/eng@2026-02-13

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