Osir v Mburu & 3 others
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the cause of action survives the deceased appellant
- 2.Whether the applicants complied with the timelines set in Rule 102 of the Court of Appeal Rules
- 3.Whether the applicants are the proper legal representatives of the deceased appellant
Key legal issues
#Substitution of a deceased appellant by legal representatives
Substitution was granted where the applicants held a grant ad litem, applied within twelve months, and the cause of action was asserted to survive.
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.
Whether the merits of the appeal may be interrogated on a substitution application
No - the court is precluded from analysing the strength or weakness of the pending appeal when deciding substitution.
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.
Legal principles established
#- 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
#- 1.Leave granted for Vincent Luo Odhiambo and Collins Ouma to substitute the deceased appellant as the due legal representatives
- 2.The appeal to continue with the substituted appellants
- 3.Costs of the application to abide the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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.
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.
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.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.