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ELCOtherNotice of Motion dated 8th June, 2020 (suit number not stated in judgment)· [2020] KEELC 712 (KLR)

Mayfair Establishments Limited v Stephen Mbugua Kihanya [2020] KEELC 712 (KLR)

Environment and Land Court
9 November 2020
3,562 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Interested/Affected Parties (Dennis Muhiu, Elizabeth Mbugua alias Bertha Wamira and David Kihanya) moved the court by Notice of Motion dated 8th June, 2020 seeking reinstatement to the suit premises Plot No. Mombasa/Block X/103, setting aside of ex-parte proceedings of 26th November, 2019 and the decree of 12th March, 2020, leave to defend the suit, and a declaration that the suit was a nullity. Their case was that the defendant, Stephen Mbugua Kihanya, died on 30th November, 2002, yet the suit was filed on 21st August, 2019, rendering all proceedings a nullity. The plaintiff opposed, contending the applicants were strangers without locus standi, that the court was functus officio having delivered judgment which was executed by eviction and demolition, and doubting the death claim since advocates claiming the defendant's instruction paid rates in October 2019. The court framed three issues: competency of the motion, functus officio, and nullity. It held the applicants lacked capacity having no letters of administration, rendering the application incompetent. Although ordinarily functus officio, the court refused to let the doctrine sustain a nullity. On the death certificate and succession proceedings, the court found the defendant was dead when the suit was filed, and that a suit against a dead person is a nullity conferring no jurisdiction. The court declared the suit a nullity, set aside the judgment of 12th March, 2020 and the decree, struck out both the suit and the notice of motion, and ordered each party to bear their own costs.

Key legal issues

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01

Whether the applicants had locus standi to bring the application

Holding

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.

Reasoning

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.

p. 3
02

Whether the court is functus officio after judgment and execution

Holding

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.

Reasoning

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.

p. 3
03

Whether the suit is a nullity

Holding

The suit was a nullity because the defendant died on 30th November, 2002, long before the suit was filed on 21st August, 2019.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 2.Set aside the judgment entered on 12th March, 2020 and the decree
  3. 3.Struck out the suit
  4. 4.Struck out the notice of motion dated 8th June, 2020
  5. 5.Ordered each party to bear their own costs

Authorities

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Legislation

  • Environment & Land Court ActSections 13, 19
  • Civil Procedure ActSections 1A, 2, 3A
  • Civil Procedure RulesOrder 22 Rule 22, Order 40 Rule 1, Order 5 Rules 2, 8, 12
  • Constitution of KenyaArticles 159, 22, 42, 70

Cases cited (12)

  • Gladys Njeri Muhura –v- Daniel Kariuki Muthiguro
    (2018) eKLR
  • Trusted Society of Human Rights Alliance –v- Mumo Matemu
    (2014) eKLR
  • Ali Nassor Mwafumbi & Another –v- Eliud Simon Mbilu & Another
    (2019) eKLR
  • C. Muttu –v- Bharath Match Works
    AIR 1964 Kant 293
  • Pratap Chand Mehta v Chrisna Devi Mehta
    AIR 1988 Delhi 267
  • Benjamin Leonard MC Foy –v- United Africa Company Limited
    (1961) 3 ALL ER 1169
  • Jersey Evening Post Ltd –v- Al Thani
    (2002) JLR 542
  • Raila Odinga & 2 Others –v- Independent Electoral & Boundaries Commission & 3 Others
    (2013) eKLR
  • Coffee Board of Kenya –v- Thika Coffee Mills Limited & 2 Others
    (2014) eKLR
  • Kenya Dock Workers Union –v- Kenya Ports Authority
    (2014) eKLR
  • Otieno –v- Ougo & Another
    (1986-1989) EALR 468
  • Geeta Bharat Shah & Others –v- Jomar Said Mwatayari & Another
    (2009) eKLR
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.