Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck OutNotice of Motion dated 18th February 2020 in Originating Summons dated 25th April 2016· [2020] KEELC 749 (KLR)

Kangwei Charo Karisa & 67 others v Ahmed Bin Haji Barawa & others [2020] KEELC 749 (KLR)

Environment and Land Court
8 October 2020
2,098 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

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

#
The defendants/applicants moved the court by Notice of Motion dated 18th February 2020 under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 24 rule 4 and Order 51 rule 1 of the Civil Procedure Rules, seeking striking out of the plaintiffs' adverse possession suit as a nullity and abuse of process because it had been instituted against a dead person. The suit, an Originating Summons filed on 26th April 2016 claiming title by adverse possession to subdivision Number 402 of Section II Mainland North (5.96 acres), was filed against Ahmed Bin Haji Barawa, the registered owner, who died in 1954 - a fact confirmed by an Assistant Chief's letter and admitted by the plaintiffs. After service, counsel entered appearance and the court, on successive applications, allowed substitution of the deceased by Abido Mohamed Ahmed and later by Fatuma, Salim and Halima Ahmed Haji. The plaintiffs opposed the application, arguing the Land Registration Act and Limitation of Actions Act sustained their claim and that the court was functus officio having already allowed the amendments. Relying on Geeta Bharant Shah v Omar Said Mwatayari (Court of Appeal) and the Indian authorities in Viktar Maina Ngunjiri, the court held that a suit against a dead person is a nullity from inception, that no legal representative can be joined to cure it, and that all prior rulings, amendments, substitutions and proceedings were null and void. The application was allowed and the suit struck out as incompetent, null and void.

Key legal issues

#
01

Whether a suit instituted against a dead defendant is sustainable

Holding

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

Reasoning

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.

p. 3
02

Whether prior rulings allowing substitution and amendment could save the suit

Holding

No; those rulings were themselves null and void because they flowed from a null suit

Reasoning

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.

p. 3

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. 1.The Notice of Motion dated 18th February 2020 is allowed
  2. 2.The plaintiffs' suit is struck out for being incompetent, null and void

Authorities

#

Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 24 rule 4; Order 51 rule 1
  • Land Registration Act, 2012Section 28(h)
  • Limitation of Actions ActSections 17, 37, 38

Cases cited (4)

  • Viktar Maina Ngunjiri & 4 Others v Attorney General & 6 Others
    (2018) eKLR
  • C. Muttu v Bharath Match Works
    AIR 1964 Kant 293
  • Pratap Chand Mehta v Chrisna Devi Menta
    AIR 1988 Delhi 267
  • Geeta Bharant Shah & 4 Others v Omar Said Mwatayari & Another
    (2009) eKLR
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.