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Court of AppealAllowedCivil Appeal (Application) E154 of 2025

Nyambara v Osano & 12 others

Court of Appeal
5 October 2026
ASAsike-Makhandia
1,330 words in judgment
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·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that an appeal does not die with a party — a properly appointed estate representative can be substituted in to continue the case.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Kisumu (Asike-Makhandia, JA) on a Motion on Notice dated 15 January 2026 brought under sections 3A and 3B of the Appellate Jurisdiction Act and Order 24 Rule 4 of the Civil Procedure Rules. The applicant, Quinter Adhiambo Nyambara, widow and beneficiary of the estate of Joseph Otieno alias Jose Lewis Otieno, sought leave to substitute herself, as holder of a grant of letters of administration ad litem issued in Miscellaneous Succession Cause No. E001 of 2026, for the deceased 2nd respondent in a pending appeal. The deceased died on 10 April 2025, before the appeal was instituted. The application was unopposed: no replying affidavit or submissions were filed despite directions, and the court proceeded on the material before it, being satisfied the parties were served. The court held that the governing provision is Rule 102 of the Court of Appeal Rules rather than Order 24 Rule 4 of the Civil Procedure Rules, but treated the motion as properly brought under Rule 102 since the mis-citation caused no prejudice. Finding evidence of death, of the grant ad litem, and of no demonstrated prejudice, the court allowed the application. It substituted the applicant for the deceased 2nd respondent for purposes of the appeal, deemed her advocate's Notice of Appointment properly filed, and ordered costs of the application to be in the appeal. The decision rests on established Court of Appeal authority recognising substitution as the mechanism by which a surviving appeal continues after a party's death.

Questions the Court framed

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

  1. 1.Whether the applicant has established sufficient grounds to warrant substitution of the deceased with the legal representative of his estate, that is, the applicant

Key legal issues

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Whether substitution of a deceased respondent by his legal representative was warranted

Holding

Yes; the applicant held a grant ad litem, the appeal survived the deceased, no opposition or prejudice was shown, and the interests of justice favoured substitution.

Reasoning

The court found evidence of death and of a grant of letters of administration ad litem clothing the applicant with capacity to represent the estate. No replying affidavit challenged the death, her status, or the necessity of substitution, and no prejudice was demonstrated. The court treated the motion as brought under Rule 102 of the Court of Appeal Rules despite the wrong provision cited, holding the omission non-prejudicial.

Legal principles established

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  • Where a party to an appeal dies and the appeal survives, the court shall, upon application, cause the deceased's legal representative to be substituted and the appeal shall proceed.
  • Applications for substitution of a deceased party in an appeal are governed by Rule 102 of the Court of Appeal Rules, not Order 24 Rule 4 of the Civil Procedure Rules.
  • Citation of the wrong statutory provision is not fatal where the essence of the application is self-evident and no prejudice is occasioned.

Court orders

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  1. 1.Quinter Adhiambo Nyambara, holder of a grant of letters of administration ad litem, substituted in place of the deceased 2nd respondent for purposes of the appeal
  2. 2.The Notice of Appointment of Advocates filed on behalf of the substituted applicant deemed as duly and properly filed
  3. 3.Costs of the application shall be in the appeal

The bench

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

AS
majority

Wrote the judgment

Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act; Rule 102 of the Court of Appeal Rules

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.

The rationale behind substitution is to ensure that an appeal that survives the deceased party is not defeated by death and that the estate of the deceased is accorded an opportunity to participate in the appeal through a duly appointed legal representative
p. 3Rationale for substitution of deceased parties
Quinter Adhiambo Nyambara, being the holder of a grant of letters of administration ad litem in respect of the estate of Joseph Otieno alias Joselewis Otieno (deceased), is hereby substituted in place of the deceased 2nd respondent for purposes of this appeal
p. 3Final orders - substitution granted
Costs of the application shall be in the appeal.
p. 3Final orders - costs

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, "Nyambara v Osano & 12 others", Case Analysis (2026). Civil Appeal (Application) E154 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2104/eng@2026-10-05

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