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ELCAllowedNot stated in the judgment

Rapemo v Orech (Environment and Land Appeal E015 of 2024) [2025] KEELC 5044 (KLR)

High Court of Kenya
11 June 2025
1,084 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court allowed a son to take over his deceased mother's appeal, confirming that substitution applications made within one year of death will succeed despite minor paperwork errors.

What this practically means

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Executive summary

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This ruling by Nyagaka J, delivered on 11 June 2025 via the Teams platform, determined an application dated 18 February 2025 by Momento Onyango Rapemo seeking substitution for the appellant, Fleria Opiyo Rapemo, who died on 29 July 2024, three months and five days after lodging a memorandum of appeal dated 24 April 2024. The applicant, holding letters of administration ad litem granted on 5 February 2025 in Misc. Succession Case No. E007 of 2025, invoked Sections 1A and 3A of the Civil Procedure Act and Orders 1 Rule 10 and 24 Rules 1, 2 and 3 of the Civil Procedure Rules. The respondent opposed, arguing the application was vexatious and made in bad faith because a similar earlier application dated 28 October 2024 had been withdrawn, and impugned the grant ad litem for allegedly referring to a different deceased person. The court held the application was timely under Order 24 Rule 3, being within one year of death; that the withdrawn prior application did not offend res judicata as it was never heard and determined; and that the discrepancies in the death certificate and grant were typographical. The court allowed the substitution, granted leave to amend the memorandum of appeal within fourteen days, directed filing of the decree and record of appeal within forty-five days, and set mention for 18 September 2025.

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 merits grant of the orders sought, namely substitution of the deceased appellant with the holder of letters of administration ad litem

Key legal issues

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01

Whether the applicant, holding letters of administration ad litem, should be substituted for the deceased appellant to continue the appeal

Holding

Yes. The death occurred on 29 July 2024 and the application made on 18 February 2025 was within the one-year window under Order 24 Rule 3; the grant ad litem properly referred to the deceased appellant.

Reasoning

The court applied Order 24 Rule 3 of the Civil Procedure Rules, which requires the legal representative of a deceased plaintiff/party to be joined within one year of death. The death certificate and grant ad litem established the applicant's capacity. Objections based on a prior withdrawn application and a name discrepancy failed: res judicata did not arise since the earlier application was never determined, and the grant correctly identified the deceased.

p. 2
02

Whether the prior withdrawn application and alleged discrepancies in the death certificate and grant vitiated the application

Holding

No. The earlier application was withdrawn and never determined, so res judicata did not apply, and the discrepancies were typographical.

Reasoning

The respondent argued bad faith based on the earlier application dated 28 October 2024, later withdrawn, and pointed to a death certificate referring to a different deceased. The court found the difference was a typographical error (date typed as '29 years' instead of 29/07/2024) and that the grant ad litem referred to the same deceased person. The court held a party should not exploit typographical errors to defeat substitution of a genuinely deceased party.

p. 3

Legal principles established

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  • Under Order 24 Rule 3, substitution of a deceased party is made once the legal representative obtains letters of administration, and the application must be made within one year of death.
  • A withdrawn application that was never heard and determined does not bar a subsequent similar application under the doctrine of res judicata.

Court orders

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  1. 1.The applicant is allowed to substitute the deceased appellant, Fleria Opiyo Rapemo, and proceed with the suit as the personal representative of her Estate
  2. 2.The applicant is granted leave to amend the Memorandum of Appeal to reflect the substitution within fourteen (14) days and serve
  3. 3.The applicant is directed to file the decree and record of appeal within forty-five (45) days
  4. 4.Mention on 18th September 2025 for further directions

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Sections 1A and 3A of the Civil Procedure Act; Order 1 Rule 10 and Order 24 Rules 1, 2 & 3 of the Civil Procedure Rules, 2010

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 applicant is thus allowed to substitute the deceased appellant, Fleria Opyo Rapemo, and proceed with the suit as the personal representative of her Estate.
p. 3Substitution granted
Further he is granted leave to amend the Memorandum of Appeal with the aforesaid substitution within the next fourteen (14) days and serve. He is also directed to file the decree and record of appeal within the next forty five (45) days.
p. 3Final orders - timelines
the said application was not heard and determined and thus by bringing forth the instant application the applicant has not run afoul of doctrine of res judicata.
p. 2Res judicata and withdrawn applications

Issues in the judgment

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minor

The judgment inconsistently describes the applicant's gender, first stating 'she seeks to be substituted' and later 'the applicant avers that he is the son', and refers to the deceased as both 'Fleria Opyo Rapemo' and 'Fleria Opiyo Rapemo'.

minor

The court appealed from and the case number of the appeal are not stated in the ruling.

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, "Rapemo v Orech (Environment and Land Appeal E015 of 2024) [2025] KEELC 5044 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5044/eng@2025-06-11

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