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Court of AppealAllowedCivil Appeal (Application) E116 of 2024

Njagi & another v Njagi & another

Court of Appeal
25 September 2026
929 words in judgment
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The bottom line

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Kenya's Court of Appeal revived an appeal against a deceased respondent, confirming you must revive an abated appeal before substituting her legal representative.

What this practically means

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Executive summary

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This single-judge ruling of the Court of Appeal at Nyeri determined a Notice of Motion by two pro se applicants seeking revival of their appeal against the 2nd respondent, Janet Wamarua Njagi, who died on 16th August 2023, and her substitution by her son, Francis Muriithi Njagi, holder of a Limited Grant Ad Litem. Because substitution was not effected within the one-year period allowed for automatic substitution, the appeal abated against the 2nd respondent by operation of law, though it remained alive against the 1st respondent. The court, sitting as L. A. Achode, JA, declined to dismiss the application for want of prosecution despite the applicants' failure to file submissions as directed, opting instead to determine it on the Motion and supporting affidavit given the litigants appeared in person. Applying rule 102(1) and (3) of the Court of Appeal Rules 2022, and following Mungai and 3 Others vs Mbugua and Elias vs Njoka and Njeru, the court confirmed that revival must precede substitution, that abatement in a multi-respondent appeal affects only the deceased respondent, and that only a legal representative may seek revival. Holding that the Letters of Administration Ad Litem qualified the applicant to apply, the court allowed the application, revived the appeal against the 2nd respondent, ordered substitution, and 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 appeal, having abated against the 2nd respondent on her death, should be revived
  2. 2.Whether Francis Muriithi Njagi, holder of a Limited Grant Ad Litem, is qualified to be substituted for the deceased 2nd respondent

Key legal issues

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01

Correct procedural route for revival and substitution after abatement

Holding

Rule 102(1) and (3) of the Court of Appeal Rules 2022 governs; revival must precede substitution, and only a legal representative may apply for revival.

Reasoning

The court set out the procedural hierarchy: an abated appeal must first be revived before substitution can be ordered, since substitution in a vacuum would exceed jurisdiction. Rule 102(3) confines the application for revival to the deceased's legal representative, who must show sufficient cause preventing continuation of the appeal.

p. 2
02

Effect of death on a multi-respondent appeal

Holding

Non-substitution of a deceased respondent within the statutory one-year period abates the appeal only against that respondent, leaving it alive against the others.

Reasoning

Relying on Elias vs Njoka and Njeru, the court held that abatement is individual, not total: the appeal remained alive against the 1st respondent but abated against the 2nd respondent upon the lapse of the one-year substitution period.

p. 2
03

Capacity of the applicant to apply

Holding

A holder of Letters of Administration Ad Litem is a legal representative qualified to seek revival and substitution.

Reasoning

Under section 82 of the Law of Success Act a personal representative may enforce causes of action that survived the deceased, and section 3 defines a personal representative as executor or administrator. The applicants produced Letters of Administration Ad Litem, satisfying the rule 102(3) requirement.

p. 2

Legal principles established

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  • Once an appeal has abated, a party must first seek revival of the appeal before seeking substitution; the court cannot order substitution in a vacuum.
  • Where an appeal involves multiple respondents, failure to substitute a deceased respondent within the statutory timeline abates the appeal only against that deceased individual.
  • Only the legal representative of a deceased party may move the court for revival of an abated appeal.

Court orders

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  1. 1.The appeal in respect of the 2nd respondent, Janet Wamarua Njagi (deceased), is revived
  2. 2.Francis Muriithi Njagi, the legal representative of the deceased's estate, is substituted for the 2nd respondent
  3. 3.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(1) and (3) of the Court of Appeal Rules 2022; Section 3A of the Appellate Jurisdiction Act

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.

once an appeal has abated, a party must first seek the revival of the appeal before seeking to substitute the deceased. Otherwise the Court would have no jurisdiction to order substitution in a vacuum.
procedural hierarchy - revival before substitution
if a suit involves multiple respondents, the failure to substitute a deceased/respondent within the statutory time line, results in the abetment of the appeal, only against the deceased individual.
p. 2partial abatement in multi-party appeals
The application is therefore found to have merit and is allowed with no order as to costs.
p. 2disposition

Issues in the judgment

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minor

Affidavit date postdates the Motion it supports by two years, suggesting typographical error.

minor

Judgment alternates between 'Court of Appeal Rules 2010' and '2022' when identifying the governing rule.

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, "Njagi & another v Njagi & another", Case Analysis (2026). Civil Appeal (Application) E116 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1961/eng@2026-09-25

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