Barrack Biwott (Suing as the Administrator of the Estate of the late Ruth Jeserem) & 3 others v Peter Boisio Ngetich & 2 others [2018] KEELC 3359 (KLR)
The bottom line
#Kenya's High Court cancelled a 1999 land vesting order made against a deceased person without hearing the families living on the land, and joined them to the case.
What this practically means
#Executive summary
#Key legal issues
#Whether proceedings against a deceased person and a vesting order granted by a Deputy Registrar are valid
The suit against a deceased person was a nullity and the Deputy Registrar lacked jurisdiction to make the vesting order, which was therefore null ab initio
At the time the originating summons was filed, the named defendant was dead; civil proceedings cannot be commenced against a deceased person. Further, an originating summons in the High Court can only be heard by a Judge after directions, and the Deputy Registrar had no power to grant a vesting order. Orders made without jurisdiction are nullities ab initio.
Whether the application was barred by limitation
Limitation does not apply to nullities, and in any event the 12-year period had not lapsed
The respondents argued under section 7 of the Limitation of Actions Act that they had been in possession for over 12 years. The court held that nullities have no time limit, and additionally the application filed on 17.11.2009, roughly ten years after the vesting order, fell within the 12-year limitation period.
Whether the applicants in possession were entitled to be joined and heard
The applicants, being in occupation at the time of filing suit, were entitled to be heard before the vesting order was made
It was not disputed that the applicants were residing on the land when the suit was filed. Their exclusion from proceedings that resulted in a vesting order over the land violated the cardinal right to be heard, particularly where the order affected fundamental rights.
Legal principles established
#- Civil proceedings cannot be commenced against a deceased person
- A vesting order made by a Deputy Registrar without jurisdiction is a nullity ab initio
- Nullities are not subject to any time limit and cannot be cured by limitation
- The right to be heard is cardinal where an order affects fundamental rights
Court orders
#- 1.The vesting order made on 12.8.1999 is set aside
- 2.The applicants are enjoined in the originating summons as 2nd, 3rd, 4th and 5th defendants
- 3.The originating summons to be set down for hearing
- 4.Costs in the suit
- Jurisdiction invoked
- Inherent jurisdiction of the High Court to set aside null orders; civil procedure governing originating summons
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Barrack Biwott (Suing as the Administrator of the Estate of the late Ruth Jeserem) & 3 others v Peter Boisio Ngetich & 2 others [2018] KEELC 3359 (KLR)", Case Analysis (2018). Eldoret High Court Civil Case No. 150 of 1999 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3359/eng@2018-04-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.