Juma Khamis & 4 others v Mukesh Shah & 2 others [2021] KEELC 1242 (KLR)
The bottom line
#A Kenyan court struck out a land dispute after it emerged the lead plaintiff was dead when the case was filed, warning that false court documents sink entire suits.
What this practically means
#Executive summary
#Key legal issues
#Competency of a suit filed by a deceased plaintiff
A suit instituted by a dead person is a nullity and cannot be taken over by substitution; the 1st plaintiff's suit was struck off.
The certificate of death showed the 1st plaintiff died on 20 June 2009, yet the suit was filed on 23 April 2010 with a verifying affidavit purportedly sworn by him on 23 April 2010. Relying on Babubhai Dhanji Puthak and Viktar Maina Ngunjiri, the court held that suits may only be instituted by living persons, and that one cannot take over a nullity, since even Order 1 Rule 10 or Order 6 Rule 17 amendments cannot cure it.
Effect of false verifying affidavits on the entire plaint
The whole plaint was struck out because it was accompanied by false verifying affidavits swearing all plaintiffs were alive when the signatories knew the 1st plaintiff was dead.
The court reasoned that veracity of verifying affidavits is critical to the administration of justice; deliberate falsity as to whether a party is alive constitutes fraud on the court. Public policy demands honest depositions. Following Gathangu Gatandugu and Mercy Kanyiri Makathimo, where plaints accompanied by false verifying affidavits were struck out, the court found no mistake but deliberate misleading.
Propriety of the joinder of Durahard Limited and its counterclaim
The joinder was improper: no leave was granted to add a new party, Durahard was never sued, and its counterclaim was struck out.
The leave granted on 30 July 2018 was for the defendants to amend their defence to introduce a counterclaim, not to add a party. Durahard, having been never sued by the plaintiffs, could not style itself a defendant nor file a counterclaim; it ought to have filed its own suit. The court declined to determine the counterclaim issues on wrong pleadings, noting the procedural improprieties would occasion a miscarriage of justice.
Legal principles established
#- Suits can only be instituted by or against living persons; a suit by or against a dead person is a nullity from inception and cannot be taken over by substitution.
- A plaint accompanied by a false verifying affidavit ought to be struck out.
- A third party who was never sued cannot be a defendant and therefore cannot file a counterclaim; such a party must institute its own suit.
Court orders
#- 1.The suit by the 1st plaintiff is struck off as a nullity
- 2.The plaintiffs' suit is struck out
- 3.The 3rd defendant's counterclaim is struck out
- 4.Each party to bear his/her own costs
- 5.Parties are at liberty to file a proper suit for determination of the underlying issues
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court (environment and land dispute over Plot No. 124/1 MN)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Juma Khamis & 4 others v Mukesh Shah & 2 others [2021] KEELC 1242 (KLR)", Case Analysis (2021). Civil Suit No 121 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1242/eng@2021-10-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.