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ELCOtherOriginating Summons dated 14/05/2010 (Nairobi)· [2019] KEELC 1974 (KLR)
Peter Thuu Karanja v Kigathi Wamagata & 3 others [2019] KEELC 1974 (KLR)
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#What this practically means
#Executive summary
#The Plaintiff filed an Originating Summons dated 14/05/2010 seeking to be declared owner of parcels Dagoretti/Kinoo/203 and Dagoretti/Kinoo/T.62 by adverse possession, with an order that the Deputy Registrar sign transfer documents if the Defendants did not. The Defendants, having been served by advertisement in the Daily Nation on 13/09/2010, never entered appearance, and ex parte judgment was entered for the Plaintiff on 18/05/2012 after formal proof. In 2015, Josphat Karanja Kigathi, son of the 1st Defendant and holder of a limited grant ad litem in High Court Succession Cause No. 545 of 2015, applied to set aside the judgment, producing death certificates showing that all the Defendants died before the suit was instituted and before the substituted service. He contended that the Plaintiff knowingly sued dead persons and sought leave for the estates' administrators to file a defence, asserting the Defendants were the rightful registered owners. The Plaintiff and his mother opposed, claiming long ancestral occupation and that the 1st Defendant held title only as trustee. The court found the fatal defect was that the suit was commenced against dead Defendants, confirmed by the death certificates, making the suit a non-starter. The ex parte judgment of 18/05/2012 was declared irregular and set aside, with no possibility of salvage through substitution of parties. Each party was ordered to bear its own costs. Judgment delivered at Nairobi on 29 July 2019 by K. Bor, Judge.
Key legal issues
#01
Whether judgment obtained against dead Defendants is valid
Holding
The judgment was irregular and was set aside because all Defendants died before the suit was filed, rendering the suit a non-starter and incapable of salvage even by substitution
Reasoning
Death certificates confirmed that all Defendants died before 13/09/2010 when substituted service by advertisement was effected, and indeed before the Originating Summons of 14/05/2010. A suit against dead persons is a nullity; the ex parte judgment of 18/05/2012 could not stand and no substitution of parties could cure the defect.
p. 2
Legal principles established
#- A suit commenced against persons who died before its institution is a nullity and no judgment can stand on it
Court orders
#- 1.The ex parte judgment entered on 18/05/2012 is set aside
- 2.Each party shall bear its own costs
- Jurisdiction invoked
- Original civil jurisdiction of the High Court/Environment and Land Court over a claim for adverse possession under the Originating Summons procedure (not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Thuu Karanja v Kigathi Wamagata & 3 others [2019] KEELC 1974 (KLR)", Case Analysis (2019). Originating Summons dated 14/05/2010 (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1974/eng@2019-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.