Michael Thoya Mbwana v Hussein Karimbhai Anjarwalla & another [2020] KEELC 1844 (KLR)
The bottom line
#The Environment and Land Court refused to revive a land claim filed against a man who had died 27 years earlier, calling the case a fraud.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant was unrepresented at the hearing of the application dated 18 October 2018
The court held that despite the death of Mr. Areba, the applicant was in fact represented by Mr. Atancha of the same firm, and the absence of a formal notice of change was a technicality
The court noted that Mr. Atancha, a member of M/s C.K Areba & Company Advocates as shown by the letterheads, had come on record in the applicant's related succession cause and appeared in this matter on 27 June 2019. The court found the applicant's claim that he only learned of Mr. Areba's death on 24 September 2019 to be untrue, since the notice of change of advocates was filed in May 2019.
Whether the suit was a nullity for having been filed against a dead person
The court affirmed that the suit was a nullity ab initio and a fraud, as the defendant died in 1989 before the suit was filed in 2016
The applicant did not contend in his supporting affidavit that the defendant was alive when the suit was filed, nor did he deny that Mr. Hussein died in 1989. The court found the suit was a calculated scheme to seize land from the estate, characterised as a fraud from the word go, and declined to reinstate the application.
Legal principles established
#- A suit filed against a person who was dead at the time of filing is a nullity ab initio
- Failure to file a formal notice of change of advocates may be a mere technicality where counsel has in fact been acting for a party
Court orders
#- 1.The applicant's application dated 23 January 2020 seeking to set aside the proceedings of 27 June 2019 and the ruling of 5 July 2019 is dismissed
- 2.Costs of the application awarded to Mr. Salim (the respondent)
- Jurisdiction invoked
- Sections 3 and 3A of the Civil Procedure Act, Cap 21, and Order 51 Rule 1 of the Civil Procedure Rules, 2010 (inherent powers of the court)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Bandari & another v Gilani[2023] KEELC 22014 (KLR)5 Dec 2023
Cite this brief
#Cite this brief
Caselaw, "Michael Thoya Mbwana v Hussein Karimbhai Anjarwalla & another [2020] KEELC 1844 (KLR)", Case Analysis (2020). Not stated in the judgment (Originating Summons over LR No. 858/1/MN, CR No. 8908). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1844/eng@2020-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.