Mayfair Establishments Limited v Stephen Mbugua Kihanya [2020] KEELC 712 (KLR)
The bottom line
#A Kenyan court declared a land lawsuit a nullity because it was filed against someone who had already died, and struck out the family's late rescue attempt.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicants had locus standi to bring the application
The applicants had no capacity or locus standi as they had not obtained letters of administration of the deceased's estate, so the application was incompetent and was struck out.
The applicants admitted they filed the application before obtaining a grant of letters of administration. Following Otieno v Ougo, an administrator cannot bring an action before taking out letters of administration; without locus a person cannot be heard. Legal capacity is everything and the overriding objective cannot cure its absence.
Whether the court is functus officio after judgment and execution
Ordinarily the court would be functus officio, but it would not shut its eyes to a clear nullity; functus officio cannot be used to sustain a nullity.
The judgment had been perfected by decree and executed through eviction and demolition, so the court would ordinarily be functus officio and the aggrieved party's remedy would be review or appeal. However, the court held that creating legal absurdity by sustaining a nullity under the guise of functus officio was impermissible.
Whether the suit is a nullity
The suit was a nullity because the defendant died on 30th November, 2002, long before the suit was filed on 21st August, 2019.
A death certificate and succession cause proceedings showed the defendant was long dead when the suit was filed and could not be served in any manner. Following Geeta Bharat Shah and foreign authorities, the court was bound to down its tools as it had no jurisdiction over a suit against a dead person.
Legal principles established
#- A suit filed against a person already dead at the time of filing is a nullity from inception and the court has no jurisdiction to hear it; it must down its tools.
- A litigant must hold a limited or full grant of letters of administration to institute or prosecute an action in respect of a deceased person; otherwise the action is incompetent.
- A court that is functus officio cannot ignore a clear nullity; the functus officio doctrine cannot be used to sustain a nullity.
Court orders
#- 1.Declared that the suit is a nullity as it was filed against a defendant who was dead at the time the suit was filed
- 2.Set aside the judgment entered on 12th March, 2020 and the decree
- 3.Struck out the suit
- 4.Struck out the notice of motion dated 8th June, 2020
- 5.Ordered each party to bear their own costs
- Jurisdiction invoked
- Section 13 of the Environment and Land Court Act; Sections 1A & 3A of the Civil Procedure Act; Article 159 of the Constitution of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mayfair Establishments Limited v Stephen Mbugua Kihanya [2020] KEELC 712 (KLR)", Case Analysis (2020). Notice of Motion dated 8th June, 2020 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/712/eng@2020-11-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.