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Case Brief · caselaw.co.ke
Court of AppealAllowedNot stated in judgment

Dena v Koschany & 2 others (Civil Appeal (Application) E076 of 2023) [2026] KECA 888 (KLR)

Court of Appeal
8 May 2026
235 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~1 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal revived an appeal that had lapsed when the appellant died, letting his administrator continue the case despite drafting errors in the application.

What this practically means

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Executive summary

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This is a short interlocutory ruling of the Court of Appeal, Mombasa, delivered by Tuiyott, JA, on 8th May 2026. The deceased appellant, Masha Birya Dena, died during the pendency of the appeal, so that under Rule 102 of the Court of Appeal Rules 2022 the suit would have abated. Beatrice Kadzo Chengo, who holds a limited grant of letters of administration ad litem granted on 29th November 2023 for the purpose of instituting, prosecuting or defending the suit (with no power of distribution), moved the court by a notice of motion dated 13th March 2026 seeking the striking out of the deceased appellant and her substitution in his place, annexing the death certificate and the limited grant. The motion was served on counsel for the respondents but was not opposed. The court noted that while revival of the abated appeal should properly have been sought as a substantive prayer, it disregarded the inelegance of the pleading in the interest of substantive justice. It allowed the revival of the appeal, granted the substitution as prayed, and made no order as to costs. No authorities were cited and no other judges sat on this ruling.

Questions the Court framed

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

  1. 1.Whether the appeal abated on the death of the appellant and should be revived
  2. 2.Whether Beatrice Kadzo Chengo should be substituted for the deceased appellant

Key legal issues

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01

Abatement and revival of an appeal upon the death of an appellant

Holding

The appeal had abated under Rule 102 of the Court of Appeal Rules 2022 but was revived in the interest of substantive justice, notwithstanding that revival ought to have been sought as a substantive prayer.

Reasoning

The applicant held a limited grant of letters of administration ad litem limited to prosecuting or defending the suit. Counsel for the respondents was served and did not oppose the motion. The court held that although revival should have been pleaded as a substantive prayer, procedural inelegance should be disregarded in favour of substantive justice.

p. 1
02

Substitution of a deceased party

Holding

Beatrice Kadzo Chengo, holder of a limited grant ad litem, was substituted in place of the deceased appellant.

Reasoning

The application was supported by her affidavit, the death certificate of the deceased appellant, and a limited grant of letters of administration ad litem granted on 29th November 2023 for the purpose of instituting, prosecuting or defending the suit with no power of distribution. The motion was unopposed and was allowed as prayed.

p. 1

Legal principles established

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  • Where a suit would abate under Rule 102 of the Court of Appeal Rules 2022 on the death of a party, a limited grant ad litem suffices to support revival and substitution, and procedural inelegance should not defeat substantive justice.

Court orders

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  1. 1.The appeal is revived
  2. 2.The notice of motion dated 13th March 2026 is allowed as prayed
  3. 3.Beatrice Kadzo Chengo is substituted for the deceased appellant Masha Birya Dena
  4. 4.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

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.

I disregard the inelegance of the motion and in the interest of substantive justice do hereby allow the revival of the appeal and the notice of motion dated 13th March 2026 as prayed. No order as to costs.
p. 1Revival of abated appeal; final orders
Although the suit would have abated under the provisions of Rule 102 of the Court of Appeal Rules 2022, the applicant has in the grounds on the face of the motion sought its revival
p. 1Abatement under Rule 102

Issues in the judgment

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minor

The judgment does not state the appeal number or the names of the respondents; the motion is dated 13th March 2026 but delivered 8th May 2026, which is internally consistent though the grant ad litem (29th November 2023) predates the death certificate it annexes without dates being given for the death.

minor

This is a single-judge ruling in an appellate court; no coram beyond F. Tuiyott, JA, is stated.

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, "Dena v Koschany & 2 others (Civil Appeal (Application) E076 of 2023) [2026] KECA 888 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/888/eng@2026-05-08

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