Charles Kipngeny Limo v Cherutich Chepkemoi Chebii & 2 others [2021] KEELC 1582 (KLR)
The bottom line
#You cannot sue a deceased person in Kenya, and courts will not grant final land ownership orders before a full hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether a suit against a deceased person is a nullity
The suit against the 1st respondent does not lie; she died on 2/04/2018 and the suit was instituted on 3/06/2021, so it is void ab initio
Order 1 rule 3 of the Civil Procedure Rules permits joinder only of persons against whom relief is alleged. A deceased person is not a person for that purpose. Following Ernest Ngugi Waithaka and Mcfoy v United African Company, a void act is a nullity requiring no order to set it aside; the suit against the 1st respondent collapses automatically.
Whether the suit is res sub judice given Succession Cause No. 189/1998
The suit is not sub judice; the prayers in the succession cause application differ and the two courts have different jurisdictions
Section 6 of the Civil Procedure Act bars parallel suits where parties and subject matter are substantially the same. The applicant is the objector in the succession cause, but the application there concerns survey and administration of the estate, whereas the present application is premised on adverse possession. A probate court lacks jurisdiction over adverse possession claims, so the two matters are distinct.
Whether the application dated 2/06/2021 should be granted
The application is dismissed; final relief cannot be granted at an interlocutory stage
The prayers in the application mirror the relief in the Originating Summons, including declarations of ownership and adverse possession and a permanent injunction. Citing Olive Mwihaki Mugenda v Okiya Omtata, orders granting major relief in the suit must not be granted at the interlocutory stage without a full hearing of the originating summons.
Legal principles established
#- A suit filed against a deceased person is void ab initio
- Relief that would grant final relief cannot be granted at the interlocutory stage
- Adverse possession claims fall outside a probate court's jurisdiction; they must be brought in a suit for that purpose
Court orders
#- 1.The preliminary objection succeeds only on its first limb and only with regard to the case against the 1st respondent
- 2.The suit against the 1st respondent is a nullity as she was deceased when the suit was instituted
- 3.The application dated 2/06/2021 is dismissed with costs
- Jurisdiction invoked
- Articles 162(2) and 165(5) of the Constitution 2010; Environment and Land Court jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles Kipngeny Limo v Cherutich Chepkemoi Chebii & 2 others [2021] KEELC 1582 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1582/eng@2021-10-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.