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Court of AppealPartially AllowedCivil Appeal 46 of 2008

GEETA BHARAT SHAH & 4 OTHERS v OMAR SAID MWATAYARI & ANOTHER [2009] KECA 126 (KLR)

Court of Appeal of Kenya
16 October 2009
SBS.E.O. BosireJOJ.W. Onyango OtienoJNJ.G. Nyamu
3,344 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled that a lawsuit filed against someone who is already dead is a complete nullity, and every judgment flowing from it must be set aside.

What this practically means

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Executive summary

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This is a first appeal from a ruling of Sergon J, High Court at Mombasa, dismissing the appellants' application to set aside an ex parte judgment entered in default of appearance in a land fraud suit concerning plot Kwale/Galu Kinondo/55, later subdivided into plots 733 and 734. The respondents obtained substituted service by advertisement in the Kenya Times, interlocutory judgment, and, after formal proof before Mwera J, a judgment revoking the appellants' titles and ordering rectification of the register. The Court of Appeal held that the first defendant, Bharatkumar Nathalal Shah, died on 20th October 2004, before the plaint of 22nd December 2004 was filed; a suit against a dead person is a nullity and the court below was duty bound to set aside all proceedings founded on it ex debito justitiae. Dead people cannot read advertisements, so substituted service on the deceased was ineffective and the interlocutory judgment was not regular. The Court also found the learned Judge erred in law by failing to consider the draft defence annexed to the setting-aside application; applying Tree Shade Motors and Kingsway Tyres, it found the proposed defence not frivolous and set aside the ex parte judgment against Coastland Properties Limited, giving it fifteen days to file a defence. The appeal succeeded in part: the judgments of Mwera J and Sergon J were set aside, but no leave to defend was granted for the deceased's estate. Costs of the application and appeal were awarded to the second appellant against the first respondent. The judgment binds lower courts on the nullity of suits against deceased persons and the duty to consider draft defences.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether a suit filed against a person already dead is a nullity and whether all proceedings founded on it, including service, interlocutory judgment and formal proof judgment, are void ab initio
  2. 2.Whether there was proper service of summons justifying substituted service and a regular interlocutory judgment
  3. 3.Whether the request for judgment made under the wrong provision of the Civil Procedure Rules rendered the interlocutory judgment irregular
  4. 4.Whether the learned Judge erred in failing to consider the draft defence annexed to the application to set aside the ex parte judgment

Key legal issues

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01

Suit against a deceased person

Holding

The suit against the first appellant, who died before the suit was instituted, was a nullity and all proceedings flowing from it were void; the court below was plainly wrong in refusing to set aside the judgment as against him.

Reasoning

The first defendant died on 20th October 2004, well before the plaint of 22nd December 2004. The court held it had no jurisdiction over a dead person, and the plaintiff's verifying affidavit falsely verified that the first defendant was alive. The court could act even suo moto; the judgment against the deceased could not be a regular judgment and counsel for the respondent properly conceded.

p. 4
02

Service and regularity of interlocutory judgment

Holding

The affidavit of service was unconvincing, there was no evidence of attempts at personal service, and as the first defendant was dead, substituted service could not reach him; the interlocutory judgment as against the first defendant was not a regular judgment.

Reasoning

The process server's affidavit gave no particulars of the alleged attempts at service, and the application for substituted service referred to only one defendant. Because the person to be served was already dead, advertisement in the Kenya Times could not constitute service, so the judgment entered in default could not stand as regular.

p. 4
03

Consideration of draft defence on setting aside default judgment

Holding

The learned Judge erred in law by failing to consider the draft defence annexed to the application to set aside the ex parte judgment; having considered it, the Court found the proposed defence not frivolous and set aside the ex parte judgment against the second respondent.

Reasoning

The principles from Shah v Mbogo and Tree Shade Motors require that where a draft defence is tendered, the court must consider whether it raises reasonable or triable issues. Although the arguability of the defence was raised before the Judge in the grounds, the replying affidavit and submissions, he never considered or referred to it. That was an error of law warranting appellate intervention.

p. 6
04

Request for judgment under wrong rule

Holding

The request for judgment was made under a rule applicable to liquidated demands whereas the plaint contained none, rendering the request unprocedural, but as the point was not raised in the memorandum of appeal, the Court left it there.

Reasoning

Order IX rule 3(2) applies where the plaint makes a liquidated demand; the plaint here sought revocation of title, rectification and general damages for fraud, not a liquidated demand. The Court noted the irregularity was apparent on the record and should have been considered below, but declined to make a holding since it was not a ground of appeal.

p. 5

Legal principles established

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  • A suit filed against a person who was already dead at the time of filing is a nullity; the court has no jurisdiction to entertain it and must set aside any judgment founded on it ex debito justitiae.
  • Where there was no proper service of summons, the court has no option but to set aside the default judgment ex debito justitiae.
  • Where a draft defence is annexed to an application to set aside a default judgment, the court is obliged to consider it, and if it raises triable issues the judgment should be set aside even where it is regular.
  • A dead person cannot be served by substituted service; service by advertisement on a deceased defendant is ineffective.

Court orders

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  1. 1.Judgment of Mwera J delivered on 16th September 2005 set aside
  2. 2.Ruling of Sergon J dated 30th March 2007 and subsequent orders set aside
  3. 3.Ex parte judgment against the second respondent set aside
  4. 4.Second respondent (Coastland Properties Limited) to file defence to the suit within fifteen (15) days from the date of the judgment
  5. 5.First respondent to pay to the second appellant costs of the application by chamber summons dated 3rd May 2005 and of the appeal

The bench

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

SB
majority
JO
majority
JN
majority
On appeal from
High Court of Kenya at Mombasa
H.C.C.C. No. 276 & 277 (Consolidated) of 2004
Jurisdiction invoked
First appeal to the Court of Appeal under the Civil Procedure regime (appeal from High Court ruling); no specific constitutional provision cited

Relief refused

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Leave for the administrators of the deceased first defendant's estate to file a defence

The suit was filed after the first defendant's death and was a nullity; the administrators cannot take over a suit filed after the deceased died

p. 6

Costs

The first respondent to pay to the second appellant costs of the application by way of chamber summons dated 3rd May 2005 and of this appeal

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 court was duty bound to down its tools as it had no jurisdiction to proceed to hear a suit filed against a person who was already dead by the time the suit was filed
p. 4Jurisdiction over deceased defendants
Where it is established that there was no proper service, the court has no option but to set aside such judgment ex debito justitiae
p. 5Setting aside default judgment for lack of service
When a draft defence is tendered with the application to set aside the default judgment, the court is obliged to consider it to see if it raises a reasonable defence to the plaintiff's claim.
p. 6Duty to consider draft defence
Judgment of Mwera J delivered on 16th September 2005 and ruling of Sergon J dated 30th March 2007 and subsequent orders are set aside. The ex-parte judgment against the second respondent is also set aside.
p. 6Final orders
The second respondent is to file defence to the suit within fifteen (15) days from the date hereof. The first respondent to pay to the second appellant costs of the application by way of chamber summons dated 3rd May, 2005 and of this appeal.
p. 6Final orders - defence timeline and costs

Issues in the judgment

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minor

The judgment gives two inconsistent dates for the appellants' chamber summons: it is introduced as 'chamber summons dated 3rd May 2006' but the final orders refer to 'chamber summons dated 3rd May, 2005'.

minor

The trial court's ruling is described with two different dates: 'a ruling and order of the High Court... dated 3rd May 2006' in the heading, but 'a ruling dated and delivered on 30th March 2007' in the body.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "GEETA BHARAT SHAH & 4 OTHERS v OMAR SAID MWATAYARI & ANOTHER [2009] KECA 126 (KLR)", Case Analysis (2009). Civil Appeal 46 of 2008. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/126/eng@2009-10-16

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