Kangwei Charo Karisa & 67 others v Ahmed Bin Haji Barawa & others [2020] KEELC 749 (KLR)
The bottom line
#A land lawsuit filed against someone who had already died was struck out as a complete nullity, wasting six years of litigation.
What this practically means
#Executive summary
#Key legal issues
#Whether a suit instituted against a dead defendant is sustainable
It is not; such a suit is a nullity from inception and all proceedings founded on it, including amendments and substitution of the deceased's legal representatives, are null and void
The court accepted, as undisputed and admitted by the plaintiffs, that the original registered owner Ahmed Bin Haji Barawa died in 1954, long before the suit filed on 26th April 2016. Relying on the binding Court of Appeal decision in Geeta Bharat Shah and the Indian authorities cited therein, it held that a suit against a dead person is a nullity; service cannot be effected on the dead, the court lacks jurisdiction, and even Order 1 Rule 10 or Order 6 Rule 7 amendments cannot cure the defect.
Whether prior rulings allowing substitution and amendment could save the suit
No; those rulings were themselves null and void because they flowed from a null suit
The plaintiffs argued the court was functus officio having already allowed substitution of the deceased with his legal representatives, and later their substitution with Fatuma, Salim and Halima Ahmed Haji. The court rejected this: an order made in a suit that is a nullity is itself a nullity, so the earlier rulings and all subsequent proceedings, including the hearing, were of no legal effect. The estate could only take over proceedings if the defendant was alive when the suit was filed.
Legal principles established
#- A suit filed against a person who was dead before its institution is a nullity from inception, and no legal representative may be joined to cure it
- Once it is established that a suit was filed against a dead person, the court has no jurisdiction to proceed and must down its tools
Court orders
#- 1.The Notice of Motion dated 18th February 2020 is allowed
- 2.The plaintiffs' suit is struck out for being incompetent, null and void
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act; Order 24 rule 4 and Order 51 rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kangwei Charo Karisa & 67 others v Ahmed Bin Haji Barawa & others [2020] KEELC 749 (KLR)", Case Analysis (2020). Notice of Motion dated 18th February 2020 in Originating Summons dated 25th April 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/749/eng@2020-10-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.