Luther Kasholo Lamek & others v Rashid Warshow [2020] KEELC 2860 (KLR)

Environment and Land Court

26 February 2020

MSMunyao Sila

1,954 words in judgment

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The bottom line

What this practically means

Executive summary

This was a ruling on an application dated 18 January 2019 by Amina Rashid Washo seeking substitution as defendant, setting aside of an ex parte judgment delivered on 28 June 2017, and leave to defend a suit in which twelve plaintiffs had claimed Plot No. 363/I/MN by adverse possession against Rashid Warshow, who in fact died on 17 August 1969. The plaintiffs had served the purported defendant by newspaper advertisement, obtained judgment, and allegedly registered title in their names. The applicant produced a grant of letters of administration and confirmed grant in Mombasa High Court Succession Cause No. 371 of 2015 showing the deceased died in 1969 and that the suit land was vested in her. The plaintiffs opposed, disputing the identity of the deceased, without appearance at the hearing. Munyao Sila J held that the subject of the succession cause was the defendant, that the suit filed against a dead person was an irregularity, and that the judgment was irregular and had to be set aside. Following Viktar Maina Ngunjiri v Attorney General and Indian authorities, the court held the suit was a nullity ab initio which no substitution or amendment could cure. The judgment and decree were set aside, the plaintiffs' title cancelled and the land ordered to revert to the ownership of Rashid Warshow, and the suit was struck out. No orders as to costs were made save for the application costs, assessed at Kshs. 25,000/= payable to the applicant by the plaintiffs jointly and/or severally. The court declined to address the claim that the plaintiffs never testified, as unnecessary after setting aside the judgment.

Key legal issues

Whether the suit filed against a deceased defendant was valid

Holding

The suit was a nullity ab initio because the defendant, Rashid Warshow, died on 17 August 1969, long before the suit was filed

Reasoning

The applicant produced a grant of letters of administration in Mombasa High Court Succession Cause No. 371 of 2015 showing the defendant died on 17 August 1969 and that she was appointed administrator, with the confirmed grant distributing the very suit land, Plot No. 363 Section I Mainland North. The court found the subject of the succession cause was the defendant and that filing suit against a dead person was an irregularity rendering the suit a nullity.

p. 2

Whether the ex parte judgment should be set aside

Holding

Yes; the judgment was irregular and was set aside

Reasoning

Since the defendant was dead when the suit was filed, the court could not properly have proceeded to judgment. Had the court been aware, judgment would not have been entered. The judgment was therefore irregular and had to be set aside, with consequential cancellation of any title registered pursuant to it.

p. 2

Whether the applicant could be substituted as defendant

Holding

No; substitution cannot cure a nullity

Reasoning

Relying on Viktar Maina Ngunjiri v Attorney General and the Indian authorities of C. Muttu v Bharath Match Works and Pratap Chand Mehta v Chrisna Devi Meuta, the court held that where a suit is instituted against a person already dead it is a nullity from inception, and neither the legal representative nor amendment under Order 1 Rule 10 or Order 6 Rule 17 can cure it.

p. 2

Legal principles established

A suit instituted against a person who was already dead is a nullity from inception and cannot be cured by substitution of the deceased's legal representative
A judgment entered in a suit filed against a dead person is an irregular judgment liable to be set aside

Court orders

1.The ex parte judgment and decree dated 28 June 2017 set aside
2.The title of the plaintiffs and/or their representatives as proprietors of the suit land cancelled and the land to revert to the ownership of Rashid Warshow as it was before judgment
3.The suit struck out as a nullity for having been instituted against a dead person
4.Costs of the application assessed at Kshs. 25,000/= payable to the applicant by the plaintiffs jointly and/or severally

Authorities

Cases cited (3)

Viktar Maina Ngunjiri & 4 Others vs Attorney General & 6 Others
(2018) eKLR
C. Muttu vs. Bharath Match Works
AIR 1964 Kant 293
Pratap Chand Mehta vs Chrisna Devi Meuta
AIR 1988 Delhi 267

Jurisdiction invoked: Inherent jurisdiction of the court to set aside irregular judgment; application dated 18 January 2019 (review/set aside of ex parte judgment)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Luther Kasholo Lamek & others v Rashid Warshow [2020] KEELC 2860 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2860/eng@2020-02-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.