Mafumbula & 17 others v Attorney General (Civil Application E245 of 2021) [2026] KECA 189 (KLR) (30 January 2026) (Ruling)
Neutral citation:
[2026] KECA 189 (KLR)
Republic of Kenya
Civil Application E245 of 2021
HA Omondi, JA
January 30, 2026
Between
Moses Mandu Mafumbula
1st Applicant
Joseph Murunga Wafula
2nd Applicant
Fredrick Wamukota
3rd Applicant
Justus Wamalwa Wayelo
4th Applicant
Patrick Loponi Mulei
5th Applicant
Herman Biketi Wanyonyi
6th Applicant
Jacob Manyange Okwabubi
7th Applicant
Boniface Odeke Papa
8th Applicant
Lawrence Wekesa Bwona
9th Applicant
Charles Wanyonyi Wamoto
10th Applicant
Moses Mirun
11th Applicant
Joctan Wephukulu
12th Applicant
Francis Wekesa Wakoya
13th Applicant
George Walukhu
14th Applicant
Celestine Wakima Wati
15th Applicant
Gabriel Muiruri Mwangi
16th Applicant
Ronald Biketi Masolo
17th Applicant
Jason Kundu Kiborit
18th Applicant
and
The Attorney General
Respondent
(Being an application for substitution of the 1{{^st}} appellant in an appeal against the Judgment of the High Court of Kenya at Bungoma (Riech, J.) dated 4{{^th}} August 2021)
Ruling
1.Moses Mandu Mafumbula, the first appellant in Civil Appeal no. E245 of 2021 had contested the outcome of Bungoma High Court Petition no. 15 of 2014 (consolidated with 17/2014,18/2014, 20/2014, 21/2014, 22/2014, 23/2014, 24/2014,25/2014, 26/2014, 27/2014, 28/2014, 29/2014, 30/2014,9/2016, 10/2016, 11/2016 & 12/2016) dated 4th August, 2021 (Riechi, J.), and along with the other appellants, lodged this appeal. However, he died on 3rd August, 2024 as confirmed by a copy of the death certificate which is annexed. No substitution of the deceased appellant was made in the matter, consequently the one year statutory period within which to substitute a deceased party lapsed and the suit has abated.
2.The administrators of his estate, namely Ridah Nasike Sirael and Sarah Mutiembu, being the wife and daughter respectively, are desirous of proceeding with the suit, and seek that the name of Moses Mandu Mafumbula (deceased be substituted with the name of Ridah Nasike Sirael and Sarah Mutiembu as the 1st appellant. They have thus filed the Notice of Motion dated 25th June 2025 and supported by the affidavit sworn by both applicants. In support of their application, the applicants rely on the copy of a grant of letters of administration of the said estate that was issued to them. The applicants are apprehensive that the other consolidated appeals will be delayed as all the appeals should be heard together.
3.Although the applicant is very minimal with information as regards the consolidated suits, the information captioned in the application discloses that the abated suit relates to an appeal from the award of damages and Order of the High Court at Bungoma (S. N. Riechi, J.) in Petition No.15/2014 (consolidated with 17/2014, 18/2014, 20/2014, 21/2014, 22/2014 ,23/2014, 24/2014, 25/2014, 26/2014, 27/2014, 28/2014, 29/2014, 30/2014, 9/2016, 10/2016, 11/2016 & 12/2016 dated 4th August, 2021.
4.There is no response by the respondent either by way of a replying affidavit or written submissions
5.They have annexed a copy of the memorandum of appeal which contests the awarded sum as inordinately low amount that has failed to take into account the serious nature of the case, and the suffering of the appellants.Rule 102 (1) of the Court of Appeal Rules 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 representative of the deceased person to be made a party in place of the deceased.2.If no application is made under sub-rule (1) within twelve months from the date of the death of the appellant or respondent, the appeal shall abate.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 sufficient cause from continuing the appeal, the court shall revive the appeal upon such terms as to costs or otherwise as it deems fit.Against this background, the applicants admit that time lapsed and the appeal as relates to the 1st appellant abated. I draw from the decision in CKM v ENM & Another (Civil Appeal 250 of 2019) [2024] KECA 293 (KLR) held thus:
6.In Njoroge & Another v Kamau (Deceased) & Another (Civil Appeal (Application) E051 of 2019) [2024] KECA 806 (KLR) this Court held as follows:
7.In the present instance, the suit abated in August 2025, but before that date, the applicants swiftly moved the court in June seeking substitution, so that there really was no delay in making the application. I need not belabour the matter; the applicants have demonstrated their legal status in relation to the estate of the deceased. Consequently, the application be and is hereby allowed. The late Moses Mandu Mafumbula shall be substituted with Ridah Nasike Sirael as the 1st appellant. The costs shall be in the cause.
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