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Court of AppealAllowedCivil Appeal (Application) E194 of 2023

Osir v Mburu & 3 others

Court of Appeal
25 September 2026
1,718 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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When a Kenyan appellant dies mid-appeal, their family can step into their shoes and continue the case 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 Kisumu (Ongaya, JA) on a chamber summons dated 18th May 2026 brought under Rule 102(1) of the Court of Appeal Rules, 2022. The appellant, Simon Luo Osir, died on 18th January 2026 while his appeal against the Environment & Land Court at Kisumu (Asati, J.) judgment of 27th July 2023 in ELC Case No. E031 of 2021 was pending. His sons, Vincent Luo Odhiambo and Collins Ouma, obtained a Grant of Letters of Administration Ad Litem on 5th May 2026 and sought to be substituted to continue the appeal concerning Land Parcel No. East Kisumu/Dago/492. The 3rd respondent opposed, contending that the limited grant did not establish any proprietary interest of the deceased in the suit land, that no inventory or schedule of assets was filed in the succession cause, that the deceased held no title and was not buried on the land, and that no surviving cause of action existed capable of devolving on the estate. The court framed three issues: survival of the cause of action, compliance with Rule 102 timelines, and the applicants' status as proper legal representatives. Holding that the applicants satisfied all three, and that the merits of the appeal could not be interrogated at this procedural stage, the court allowed the application, granted leave for substitution, directed the appeal to continue, and ordered costs of the application to abide the outcome of the appeal.

Questions the Court framed

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

  1. 1.Whether the cause of action survives the deceased appellant
  2. 2.Whether the applicants complied with the timelines set in Rule 102 of the Court of Appeal Rules
  3. 3.Whether the applicants are the proper legal representatives of the deceased appellant

Key legal issues

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01

Substitution of a deceased appellant by legal representatives

Holding

Substitution was granted where the applicants held a grant ad litem, applied within twelve months, and the cause of action was asserted to survive.

Reasoning

Rule 102(1) provides that an appeal does not abate on death and the Court shall cause the legal representative to be made a party. The applicants obtained Letters of Administration Ad Litem on 5th May 2026 after the death on 18th January 2026, and applied within the twelve-month window. The court held the three pertinent considerations were satisfied and declined to examine the merits of the appeal at this interlocutory stage.

p. 3
02

Whether the merits of the appeal may be interrogated on a substitution application

Holding

No - the court is precluded from analysing the strength or weakness of the pending appeal when deciding substitution.

Reasoning

The 3rd respondent argued the deceased held no proprietary interest in the suit land and no surviving cause of action existed. The court held that the respondents' assertions form the substance of the main appeal and cannot be summarily litigated at a procedural stage; the court confined itself to the three Rule 102 considerations and expressly refrained from commenting on the appeal's merits.

p. 3

Legal principles established

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  • An appeal does not abate on the death of a party and the legal representative may be substituted within twelve months of death under Rule 102.
  • On a substitution application the court considers survival of the cause of action, compliance with timelines, and capacity of the legal representative - not the merits of the appeal.

Court orders

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  1. 1.Leave granted for Vincent Luo Odhiambo and Collins Ouma to substitute the deceased appellant as the due legal representatives
  2. 2.The appeal to continue with the substituted appellants
  3. 3.Costs of the application to abide the outcome of the appeal

The bench

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

majority

Wrote the judgment

On appeal from
Environment & Land Court at Kisumu
ELC Case No. E031 of 2021
Jurisdiction invoked
Rule 102(1) 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.

Accordingly, the application is successful. Leave is granted for the applicants Vincent Luo Odhiambo and Collins Ouma to substitute the deceased appellant as the due legal representatives, the appeal to continue as such, and, the costs of the application to abide the outcome of the appeal.
p. 3Final orders - substitution granted
The core issues for consideration are whether the cause of action survives the deceased appellant, whether the applicants have complied with the timelines set in the cited rule 102 of the rules of this court, and, whether the applicants are the proper legal representatives of the deceased appellant.
p. 3Test for substitution under Rule 102
An appeal shall not abate on the death of the appellant or respondent but the Court shall, on the application of any interested person, cause the legal representative of the deceased person to be made a party in place of the deceased.
p. 3Rule 102(1) - non-abatement

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, "Osir v Mburu & 3 others", Case Analysis (2026). Civil Appeal (Application) E194 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1954/eng@2026-09-25

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