Nyiero v Odongo (Civil Application E099 of 2020) [2026] KECA 153 (KLR) (30 January 2026) (Ruling)
Neutral citation:
[2026] KECA 153 (KLR)
Republic of Kenya
Civil Application E099 of 2020
HA Omondi, JA
January 30, 2026
Between
Joash Onyango Nyiero
Applicant
and
Zachary Omondi Odongo
Respondent
(Being an application for substitution of the respondent in an appeal from the Judgment and Decree of the High Court of Kenya at Kisumu (Maina, J.) dated 9th March, 2017 in Succession Cause 649 of 2011
Succession Cause 649 of 2011
)
Ruling
1.The Notice of Motion dated 30th July 2025, and supported by the affidavit sworn by Isdora Anyango Owuor, is made under rules 44 & 87 of the Court of Appeal Rules, 2022 seeking leave for the name of Joash Onyango Nyiero (deceased) to be substituted with that of Isdora Anyango Owuor, the Legal Representative of the estate of the deceased. It is based on grounds that the respondent in the appeal, Joash Onyango Nyiero died in the year 2018; and the legal representative to the estate, was granted the certificate of grant on 9th November, 2021. It is argued that in the interest of justice the proposed substitution ought to be effected, to enhance proper and effective prosecution of the appeal.
2.Isdorah describes herself as the widow and legal representative of the estate of the late Joash Onyango Nyiero, who passed on 8th October, 2018, as confirmed by a copy of the death certificate. She states, that she has obtained the Grant of Letters of Administration Intestate dated 24th February, 2021, and a copy of the confirmed grant dated 9th November, 2021. It is her contention that for this matter to proceed seamlessly, it is vital that the deceased party be substituted to prevent abatement of the proceedings.
3.In a replying affidavit sworn by Zachary Omondi Odongo, this court is urged to dismiss the application which is described as a non-starter on grounds that Civil Appeal No. 50 of 2020 which had been filed, was withdrawn for having been filed out of time and without leave of the court, so there exists no appeal to warrant substitution of parties. In the same breath, the respondent states that subsequently through his current Advocate on record he filed Kisumu Civil Appeal No. 248 of 2021, Zachary Omondi Odongo v Isdora Anyango Owuor (Suing as administrator of estate of Joash Onyango Nyiero-deceased) which is pending hearing and determination before the court. From the annexed memorandum of appeal, that appeal is in relation to the same judgment referred to as Succession cause No. 649 of 2011 at the High Court of Kenya at Kisumu (Maina, J.) delivered on the 9th March, 2017.
4.The applicant points out that the current appeal was filed in 2020, two years after the respondent in the matter had passed away, that the appellant had the option of filing an application for substitution, but did not do so.
5.In support of this application, the applicant refers to the decision in Njoroge & another v Kamau (deceased) & another (Civil Appeal (Application) No. E051 of 2019) [2024] KEC4806 (KLR) held as follows:
6.Reference is also made to the Court of Appeal holding in CKM v ENM & another (Civil Appeal No. 250 of 2019)(2024) KECA 293 (KLR) that:
7.The applicant points out that the current appeal was filed in 2020, two years after the respondent in the matter had passed away; so that the appeal has actually abated, however she has opted to make the application for substitution that notwithstanding. The respondent in this application does not deny that Joash Onyango Nyiero no longer inhabits this planet. Under Rule 87 (2) of the Court of Appeal Rules:
8.My dilemma is that neither party has attached a copy of the contested judgment, to enable this court appreciate what the dispute in the trial court was all about and whether the cause of action would survive the deceased.
9.This lament stems from the fact that whether a court should allow revival of an abated suit and substitution of a deceased an applicant, is required to demonstrate that the cause of action in the abated suit survives the death of the plaintiff. Fortunately, this omission is not fatal as the respondent has confirmed that he has filed another appeal Civil Appeal No. 248 of 2021, Zachary Omondi Odongo v Isdora Anyango Owuor (Suing as administrator of estate of Joash Onyango Nyiero-deceased) relating to the same contested decision, so the argument that there exists no appeal, evaporates into thin air. In addition, Rule 102 (1) provides that:
10.The respondent has not clarified how he included Isdorah in that pending appeal; whether he obtained orders for substitution or whether it was just a game of substitution by default. Whatever the situation, to arrest the mischief that might result from the evident demise, the widow of the late Joash Onyango Nyiero has taken steps to ensure the estate is properly included in the pending appeal. I detect no prejudice that would be occasioned in allowing the order sought. Consequently, the application is allowed, the costs shall abide the appeal.
DATED AND DELIVERED AT KISUMU THIS 30TH DAY OF JANUARY, 2026.H. A. OMONDI..........................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR