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ELCPartially AllowedEldoret High Court Civil Case No. 150 of 1999 (OS)· [2018] KEELC 3359 (KLR)

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)

High Court of Kenya
18 April 2018
1,468 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The applicants, children of the late Ruth Jeserem who had lived on L.R. No. 8822 since the 1930s, applied to set aside orders and a vesting order issued on 11th and 12th August 1999 by the Deputy Registrar in Eldoret High Court Civil Case No. 150 of 1999 (OS), in which the respondents claimed adverse possession and a vesting order over the suit land against the Estate of the late Mr. and Mrs. J. J. Hughes. The respondents opposed on grounds of defectiveness, lack of locus standi, laches, third-party purchases, and limitation under section 7 of the Limitation of Actions Act, arguing also that the vesting order was made by the Judge though signed by the Deputy Registrar and that the relief sought was final in nature. The respondents filed no replying affidavit, so the applicants' facts were uncontroverted. The court found that the originating summons was instituted against a deceased person, since J. J. Hughes was dead at the time of filing, and that civil proceedings cannot be commenced against a deceased person. The applicants, who were in possession, were never joined and were entitled to be heard before an order affecting their rights was made. Further, the Deputy Registrar lacked jurisdiction to grant the vesting order, rendering it a nullity ab initio. Nullities have no time limit, and in any event the application, filed about ten years after the vesting order, was within the 12-year limitation period. The court set aside the vesting order of 12.8.1999, enjoined the applicants as 2nd to 5th defendants, directed the originating summons be set down for hearing, and awarded costs in the suit.

Key legal issues

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01

Whether proceedings against a deceased person and a vesting order granted by a Deputy Registrar are valid

Holding

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

Reasoning

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.

p. 2
02

Whether the application was barred by limitation

Holding

Limitation does not apply to nullities, and in any event the 12-year period had not lapsed

Reasoning

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.

p. 2
03

Whether the applicants in possession were entitled to be joined and heard

Holding

The applicants, being in occupation at the time of filing suit, were entitled to be heard before the vesting order was made

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The vesting order made on 12.8.1999 is set aside
  2. 2.The applicants are enjoined in the originating summons as 2nd, 3rd, 4th and 5th defendants
  3. 3.The originating summons to be set down for hearing
  4. 4.Costs in the suit

Authorities

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Legislation

  • Civil Procedure RulesOrder XXXVI Rule 10
  • Limitation of Actions ActSection 7
Jurisdiction invoked
Inherent jurisdiction of the High Court to set aside null orders; civil procedure governing originating summons

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "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.