Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal (Application) No. E044 of 2026

Abdi Adan Hussein & 2 Others v Attorney General & 2 Others

Court of Appeal
2 October 2026
2,434 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal refused to revive an appeal that died when an applicant passed away, because the delay and non-disclosure were never properly explained.

What this practically means

#

Executive summary

#
This ruling of the Court of Appeal at Eldoret (Gachoka, Nderi and Ndolo, JJ.A) determines a notice of motion dated 8th April 2026 seeking revival of an appeal that had abated on the death of the 2nd applicant, Shire Maalim Osman, substitution of his administrator ad litem, and setting aside of the judgment delivered on 5th June 2025 in Civil Appeal No. 100 of 2018, which had allowed the respondents' appeal against a decision of Ombwayo, J in ELC No. 438 of 2013 declaring the applicants bona fide purchasers of land in Eldoret. The 2nd applicant died on 30th September 2023 during the pendency of the appeal; the appeal was heard on 10th March 2025 without disclosure of his death and determined on 5th June 2025. The court framed two issues: whether the appeal abated and should be revived with substitution, and whether the judgment should be set aside. It found the appeal had abated by operation of law but that no sufficient cause for revival was established: counsel on record appeared nearly two years after the death without disclosing it, no affidavit from him explained the omission, and the co-applicants were silent on whether they knew of the death. Substitution was refused as out of time and futile, there being no live appeal. Setting aside was refused as dependent on revival and substitution. The application was dismissed with no order as to costs.

Questions the Court framed

#

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

  1. 1.Whether the appeal abated and ought to be revived and, if so, whether the deceased 2nd applicant should be substituted with a legal representative
  2. 2.Whether the judgment and consequential orders of 5th June 2025 should be set aside

Key legal issues

#
01

Whether the appeal abated and whether sufficient cause existed for revival

Holding

The appeal abated by operation of law on the death of the 2nd applicant, but no sufficient cause for revival was shown; counsel's failure to disclose the death did not constitute sufficient cause.

Reasoning

Rule 102(1) provides that an appeal does not abate on death if a legal representative is joined within 12 months, failing which it abates. Revival under rule 102(3) requires sufficient cause. Counsel Mathai appeared nearly two years after the death without disclosing it, and no affidavit from him explained the position. The joint purchasers' silence on knowledge of the death left unexplained gaps, failing the 'sufficient cause' standard.

p. 17
02

Whether the deceased 2nd applicant should be substituted

Holding

Substitution was refused as the application was out of time and there was no live appeal to substitute into.

Reasoning

The application was lodged on 8th April 2026, well beyond the 12-month window from the death on 30th September 2023. The appeal had already been heard and determined on 5th June 2025, so substitution would be a futile academic exercise; a court cannot act in vain.

p. 19
03

Whether the judgment and consequential orders of 5th June 2025 should be set aside

Holding

The prayer failed because setting aside was dependent on revival and substitution, both of which were refused; the judgment against the joint purchasers stands.

Reasoning

The court held that setting aside must accompany revival and substitution. The judgment did not distinguish the deceased from the other applicants: all three were joint holders of one title, co-purchasers from a single auction, and represented by the same advocate. The substratum of the judgment remained the same, so there was no basis to interfere.

p. 21

Legal principles established

#
  • An appeal that has abated by operation of law will only be revived where the applicant demonstrates sufficient cause, and discretion will not assist a party who was duly represented but whose counsel failed to disclose a material fact.
  • Substitution of a legal representative must be sought within 12 months of death, and cannot be granted where the appeal has already been heard and determined.
  • Setting aside a judgment in an abated appeal is contingent on revival of the appeal and substitution of the deceased party.

Court orders

#
  1. 1.The notice of motion dated 8th April 2026 is dismissed
  2. 2.No order as to costs

The bench

#

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

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
Court of Appeal at Eldoret
Civil Appeal No. 100 of 2018 (Kisumu), transferred to Eldoret
Jurisdiction invoked
Rules 47 and 102(3) of the Court of Appeal Rules, 2022

Relief refused

#

Revival of the appeal against the deceased 2nd applicant

No sufficient cause established under rule 102; counsel failed to disclose the death and the explanation left gaps

p. 17

Substitution of the administrator ad litem for the deceased 2nd applicant

Application lodged well beyond 12 months of death and there was no live appeal to substitute into

p. 18

Setting aside of the judgment and consequential orders of 5th June 2025

Setting aside must go hand in hand with revival and substitution; since revival failed, the judgment stands

p. 19

Costs

The notice of motion dated 8th April 2026 is dismissed with no order as to costs.

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.

Sufficient Cause must therefore be rational, plausible, logical, convincing, reasonable and truthful. It should not be an explanation that leaves doubt in a judge's mind. The explanation should not leave unexplained gaps in the sequence of events.
p. 15Meaning of sufficient cause for revival of an abated appeal
Discretion should not be exercised capriciously to assist a party who was duly represented throughout the proceedings, but whose counsel failed to disclose a material fact.
p. 15Limits of judicial discretion under rule 102(3)
Whereas substitution is permissible in law, granting the same would be a futile academic exercise in the present circumstances and we find no cause to allow that prayer. It is trite that the court cannot act in vain.
p. 19Substitution after determination of appeal
Consequently, the notice of motion dated 8th April 2026 is hereby dismissed with no order as to costs.
p. 21Final orders and costs

Issues in the judgment

#
minor

Date of hearing stated inconsistently as 10th March 2025 and 30th March 2025

minor

Revival test attributed to rule 102(2) although the application was brought under rule 102(3)

minor

Deceased party described variously as 2nd applicant and 2nd respondent/applicant

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Abdi Adan Hussein & 2 Others v Attorney General & 2 Others", Case Analysis (2026). Civil Appeal (Application) No. E044 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2053/eng@2026-10-02

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