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ELCStruck Out· [2020] KEELC 2878 (KLR)

Nassir Khamis Baleth v Kurt Mayer & 3 others [2020] KEELC 2878 (KLR)

Environment and Land Court
6 May 2020
JOJ.O. Olola
633 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan land dispute was struck out because the plaintiff sued a man who had already died — you cannot sue a dead person.

What this practically means

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Executive summary

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The Plaintiff, Nassir Khamis Balleth, moved the court by Notice of Motion dated 16th October 2018 seeking a temporary injunction restraining the Defendants from trespassing on, cultivating, constructing on or interfering with parcels 10719/532 and 10719/533 Maisha Mapya, pending the hearing of the suit. The application alleged threats of forcible alienation, unauthorised construction within the land's boundaries, obstruction of access and consequent irreparable loss. The pleadings named Kurt Mayer as 1st Defendant and Islam Omar Said as 2nd Defendant, but the summons issued on 17th October 2018 erroneously listed four individuals, including Charo Baya Mwavuwa and Said Islam Almashjary. Islam Omar Said and Said Islam Almashjary appeared and the suit against them was withdrawn by notice dated 14th February 2019. Charo Baya Mwavuwa filed a memorandum of appearance under protest and a preliminary objection that the suit was bad in law, vexatious, an abuse of process and disclosed no cause of action against him. At the hearing on 15th May 2019 the court learned that the 1st Defendant, Kurt Mayer, had died long before the suit was filed. The Plaintiff's Advocates then submitted that Mwavuwa, the deceased's caretaker, should be bound by the orders sought. The court rejected this as unserious, holding that no suit can be brought against a dead person and that there was no legal provision for substituting a caretaker for the deceased. The court found the summons were issued in error, the suit was only against the deceased Kurt Mayer, and struck out both the suit and the application with costs to Charo Baya Mwavuwa.

Key legal issues

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01

Whether the suit and interlocutory application were maintainable against the Defendants named

Holding

The suit and application were misconceived and an abuse of the court process and were struck out

Reasoning

The summons to enter appearance issued in error named four individuals whereas the pleadings named only Kurt Mayer and Islam Omar Said. The suit against Islam Omar Said was withdrawn, leaving only Kurt Mayer, who had died long before the suit was filed. No suit lies against a dead person, and the Plaintiff's suggestion that the deceased's caretaker, Charo Baya Mwavuwa, be made the subject of the orders had no legal basis.

p. 2

Legal principles established

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  • No suit can be maintained against a dead person, and there is no provision of law permitting substitution of a deceased defendant's caretaker for the deceased

Court orders

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  1. 1.The suit and the Notice of Motion application dated 16th October 2018 struck out with costs to Charo Baya Mwavuwa, the purported 2nd Defendant
Jurisdiction invoked
Not expressly stated; Environment and Land Court jurisdiction over land disputes

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, "Nassir Khamis Baleth v Kurt Mayer & 3 others [2020] KEELC 2878 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2878/eng@2020-05-06

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