Njagi & another v Njagi & another (Civil Appeal (Application) E116 of 2024) [2026] KECA 1961 (KLR) (25 September 2026) (Ruling) Neutral citation: [2026] KECA 1961 (KLR) REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NYERI CIVIL APPEAL (APPLICATION) E116 OF 2024 LA ACHODE, JA SEPTEMBER 25, 2026 BETWEEN ALEXANDER NDAMBIRI NJAG .................................................... 1ST APPLICANT JOSEPH MWANGI NJAGI ............................................................... 2ND APPLICANT AND PHILLIS KARIUKI NJAGI ........................................................... 1ST RESPONDENT JANET WAMARUA NJAGI ......................................................... 2ND RESPONDENT (Being an application for revival Nyeri Civil Appeal No. E116 of 2024 and substitution of the 2nd respondent) RULING 1. The Notice of Motion dated 4th August, 2024 is expressed to be brought under rules 41, 42, 43 and 47 of the Court of Appeal Rules 2010, Order 24 Rules 4 and 7 of the Civil Procedure Rules, and Section 3A of the Appellate Jurisdiction Act, none of which was necessary. In it the applicants are seeking for an order to revive the appeal in respect of the 2nd respondent, Janet Wamarua Njagi, (deceased), and another order for Francis Muriithi Njagi, her son and legal representative of her estate appointed under a Limited Grant ad Litem, to be substituted in her place. 2. The 2nd respondent died on 16th August 2023, and the period of one year allowed for automatic substitution lapsed before the substitution was eected. As a result, the appeal in respect of the deceased abetted by operation of the law. 3. The application is predicated on the grounds on the face thereof and averred in the Supporting Adavit dated 5th August 2026, sworn by the two applicants. The applicants aver that the delay in seeking the revival of the appeal and substitution of the 2nd respondent was inadvertent, excusable and was occasioned by the time taken to process and obtain the Limited Grant Ad Litem. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1961/eng@2026-09-25 1
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4. The applicant did not le submissions despite the directions given by the Deputy Registrar on 8th September 2026. As such the Court has an option to dismiss the application for want of prosecution. The rationale is that extension of time is an equitable and discretionary remedy and not a right. The applicant carries the burden of actively convincing the Court to grant it, and failure to comply with the directions of the Registrar amounts to indolence. The second option, which I have taken for the reason that the application is brought by Pro se litigants, is to determine the application solely based on the Notice of Motion and the Supporting Adavit on record. 5. Under Rule 102 (1) and (3) of the Court of Appeal Rules 2022, by which the applicants should have invoked the jurisdiction of this Court, any person claiming to be the legal representative of a deceased party, or an interested party in an appeal may apply for the deceased party to the appeal to be substituted with their legal representative. The section provides that: “ (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 representation of the deceased person to be made a party in place of the deceased. (3) The person claiming to be the legal representative of a deceased party or an interested party to an appeal may apply for an order to revive an appeal which has abated and, if it is proved that the legal representative was prevented by sucient cause from continuing the appeal, the court shall revive the appeal upon such terms as to costs or otherwise as it deems t.” 6. The procedural hierarchy in an application of this nature as stated in Mungai and 3 Others vs Mbugua, Civil Appeal Application No. E050 of 2024, KECA 81 eKLR, is that once an appeal has abated, a party must rst seek the revival of the appeal before seeking to substitute the deceased. Otherwise the Court would have no jurisdiction to order substitution in a vacuum. In the case of Elias vs Njoka and Njeru [2025], KCEA 952, the Court of Appeal claried that if a suit involves multiple respondents, the failure to substitute a deceased/respondent within the statutory time line, results in the abetment of the appeal, only against the deceased individual. Therefore, although this appeal is alive as against the 1st respondent, it abated against the 2nd respondent herein. This application was therefore necessary. 7. Once an appeal abates, then under rule 102 (3) (formerly rule 99 (3) of the Court of Appeal Rules 2010), only the legal representative of a party may move the court for revival of the appeal. (See -Charles Mbwika Musee vs Settlement Fund Trustee & Mwangangi Nthanga Nguyo, Civil Appeal Application No. 192 of 2004). Under section 82 of the Law of Success Act, a personal representative has the power to enforce by suit or otherwise, all causes of action which by virtue of any law survived the deceased. A personal representative is dened under Section 3 of the Act as the executor/administrator as the case may be, of the deceased person’s estate. 8. The applicant herein has produced Letters of Administration Ad Litem, and is therefore qualied to make the application for revival of the appeal against the 2nd respondent, and to substitute her. The application is therefore found to have merit and is allowed with no order as to costs. DATED AND DELIVERED AT NYERI THIS 25TH DAY OF SEPTEMBER 2026. L. ACHODE ………………………… https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1961/eng@2026-09-25 2
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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/2026/1961/eng@2026-09-25 3
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