Osir v Mburu & 3 others

3. Opposing the application, the 3rd respondent swore a replying adavit on 24th June, 2026 calling for the application’s dismissal in the interest of justice. She averred that the applicants have not disclosed the full circumstances under which the limited grant of Letters of Administration Ad Litem was issued. That no inventory, schedule of assets or adavit has been led at the High Court in Kisumu Succession Cause No. E017 of 2026, to conrm whether or not Land Parcel No. East Kisumu/ Dago/492 (hereinafter “the suit land”) was listed as an asset of the deceased appellant’s estate. That no title in the name of the deceased appellant in respect of the suit land has been placed before the court to justify listing it as an asset of his estate. That if the applicants represented to the High Court at Kisumu that the suit land was an asset of the deceased’s estate, such representation was false, misleading and calculated to obtain a grant to which they were not entitled. 4. The 3rd respondent noted that neither the deceased appellant nor his wife was buried on the suit land, but were both buried on separate parcels of land donated by their relatives. She contended that this is a compelling indication that the deceased had no established title, possession or physical presence on the property in dispute. 5. The 3rd respondent further averred that the cause of action that founded the suit and subject of this appeal was a claim of fraud following the deceased appellant’s assertion that the suit land was his and that the respondent was a trespasser. That the said claim was made without any documentary proof, and since the deceased appellant held no proprietary interest in the property at the time of his death, no interest capable of devolving upon or vesting in his estate or legal representatives exists. That substituting the deceased appellant’s name with the applicants would not serve any useful purpose, as no surviving cause of action exists that the deceased’s two sons could continue. 6. This application was listed before me on 16th September 2026 as a chamber matter considered in the absence of the parties or their advocates. It is for determination based on the material on record. 7. The applicants led written submissions dated 29th June 2026. It was urged that under Rule 102(1) of the Court of Appeal Rules 2022, an appeal does not abate upon the death of a party and the Court is empowered to substitute the deceased with their legal representatives. That the applicants obtained Grant of Letters of Administration Ad Litem in the succession cause, thereby acquiring the requisite legal capacity to represent the estate of the deceased appellant. That the instant application has been made within the statutory framework under Rule 102(2), thus indicating procedural diligence on the part of the applicants. 8. On whether the cause of action survives the deceased appellant, the applicants submitted that substitution is not discretionary but a statutory imperative once the legal representative demonstrates capacity. That substitution regularizes representation of a deceased party to ensure continuity of proceedings and does not alter or determine the substantive issues in the case. On this issue, they cited the case of Said Sweilem Gheithan Saanum v Commissioner of Lands & 5 others [2015] eKLR. 9. It was the applicants’ submission that if substitution is denied, the appeal will automatically abate and permanently lock out the estate of the deceased appellant from ventilating their grievances. That the respondents will not suer any prejudice if orders sought are granted. They noted that the respondent’s assertions in her reply form the core substance of the main appeal and therefore cannot be summarily litigated during a procedural stage of substituting a deceased party. They referred to the Nigerian case of EFCC v Kogi State Government & Others [2023] LPELR- 60378 (CA) in which it was stated that a court must not delve into the substance of a case while taking an interlocutory or interim application. 10. The 3rd respondent led written submissions dated 20th July, 2026. She submitted that solely producing the limited grant of letters of administration ad litem does not satisfy the requirements for substitution https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1954/eng@2026-09-25 2

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under Rule 102 of this Court’s Rules. That the grant ad litem neither validates the deceased’s claim nor confers rights that did not vest in the deceased. Further, that the grant does not establish that the estate has a legally recognizable interest in the subject matter of the proceedings. The 3rd respondent cited Atieno & another v Murila (Civil Appeal E431 of 2023) [2025] KEHC 3462 (KLR), in which the court held that the holder of the limited grant undertakes to administer the estate in accordance with the law, only within the specic purpose for which the grant was issued, until the court issues a further grant of representation. 11. Further, the 3rd respondent argued that Rule 102 further requires that the cause of action survive the deceased before substitution can be ordered. That since an estate cannot inherit rights that never vested in the deceased, the applicants have failed to demonstrate any transmissible proprietary interest and surviving cause of action. She urged that the evidence that the deceased neither held title to the suit property nor was buried there is relied upon mainly to demonstrate the absence of any proprietary interest capable of devolving upon his estate. In addition, before invoking Rule 102, the Court must rst be satised that the applicants have established the legal basis on which they seek to continue the appeal, a burden the decision in Said Sweilem (supra) does not relieve them of. 12. The 3rd respondent further submitted that the applicants have failed to exhibit the material upon which the limited grant was obtained: the petition, supporting adavit, inventory of assets, or documents showing that the suit land was part of the deceased’s estate. That this Court cannot consequently ascertain whether the succession court was informed that ownership of the suit property is disputed or whether the applicants represented the property as belonging to the deceased estate. She asserted that a party seeking the court’s discretionary relief must make full disclosure of all material facts, as rearmed by the Court of Appeal in Bahadurali Ebrahim Shamji v Al Noor Jamal & 2 others [1998] eKLR. She thus urged the Court to dismiss the chamber summons application with costs to the 3rd respondent. 13. Rule 102 (1) and (2) of the Court of Appeal Rules on death of a party to appeal state as follows: “1) An appeal shall not abate on the death of the appellant or respondent but the Court shall, on the application of any interested person, cause the legal representative of the deceased person to be made a party in place of the deceased. 2) If no application is made under subrule (1) within twelve months from the date of the death of the appellant or respondent, the appeal shall abate.” 14. The applicants have made the application to substitute the appellant within the prescribed time. Further, as submitted for the applicants the appeal has not abated in terms of the provisions of Rule 102(1) and the applicants were entitled to apply and obtain the limited grant of letters of administration ad litem for purposes of being substituted in the place of the deceased appellant. 15. The applicants have correctly submitted that the substantive merits of the appeal are not to be considered or interrogated in deciding the instant application for substitution of the deceased applicant. The core issues for consideration are whether the cause of action survives the deceased appellant, whether the applicants have complied with the timelines set in the cited rule 102 of the rules of this court, and, whether the applicants are the proper legal representatives of the deceased appellant. In the current application, the applicants have satised the three pertinent considerations. At this stage, there is no basis and am precluded from making analysis and comments on the weakness or strength of the pending appeal. 16. Accordingly, the application is successful. Leave is granted for the applicants Vincent Luo Odhiambo and Collins Ouma to substitute the deceased appellant as the due legal representatives, the appeal to continue as such, and, the costs of the application to abide the outcome of the appeal. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1954/eng@2026-09-25 3

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DATED AND DELIVERED AT KISUMU THIS 25TH DAY OF SEPTEMBER, 2026. B. ONGAYA ………………………… JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1954/eng@2026-09-25 4

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