Abdi Adan Hussein & 2 Others v Attorney General & 2 Others
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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.Whether the judgment and consequential orders of 5th June 2025 should be set aside
Key legal issues
#Whether the appeal abated and whether sufficient cause existed for revival
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.
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.
Whether the deceased 2nd applicant should be substituted
Substitution was refused as the application was out of time and there was no live appeal to substitute into.
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.
Whether the judgment and consequential orders of 5th June 2025 should be set aside
The prayer failed because setting aside was dependent on revival and substitution, both of which were refused; the judgment against the joint purchasers stands.
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.
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.The notice of motion dated 8th April 2026 is dismissed
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
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
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
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
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.
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.
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.
Consequently, the notice of motion dated 8th April 2026 is hereby dismissed with no order as to costs.
Issues in the judgment
#Date of hearing stated inconsistently as 10th March 2025 and 30th March 2025
Revival test attributed to rule 102(2) although the application was brought under rule 102(3)
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.
- Maikuma Wekesa Buchunju (Suing for and on Behalf of the Estate of the Late Buchunju Kapchanga - Deceased) v Donald Wekesa Muyundo & 7 others[2023] KEELC 20567 (KLR)5 Oct 2023applied
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.