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ELCDismissed· [2021] KEELC 1582 (KLR)

Charles Kipngeny Limo v Cherutich Chepkemoi Chebii & 2 others [2021] KEELC 1582 (KLR)

Environment and Land Court
14 October 2021
2,141 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The plaintiff filed a Notice of motion dated 2/06/2021 under Order 40 and 51 of the Civil Procedure Rules and section 3A of the Civil Procedure Act, seeking declarations that he is the lawful owner and adverse possessor of approximately 3 ¾ acres of LR No. 8956 Torongo Farm, orders for issuance of titles, re-establishment of boundaries, and a permanent injunction against the respondents. He relied on a 1994 land sale agreement with the late Samuel Chebii, payment of consideration, and over 27 years of uninterrupted occupation. The 2nd and 3rd respondents, administrators of the deceased's estate, filed a preliminary objection on three grounds: the suit against the 1st respondent (the deceased's widow) was a nullity as she died on 2/04/2018 before the suit was instituted on 3/06/2021; the suit was sub judice given the pending Nakuru Succession Cause No. 189/1998 in which the applicant claims a beneficial interest; and the suit violated Order 37 rule 8 of the Civil Procedure Rules. The court held that a deceased person is not a 'person' capable of being sued under Order 1 rule 3, and that a suit against a non-existent person is void ab initio, citing Mcfoy v United African Company. On sub judice, the court found the prayers in the succession cause were different, and that adverse possession falls within land law rather than succession law, with the two forums having distinct jurisdictions. The Order 37 rule 8 ground was found to replicate the sub judice ground. The preliminary objection succeeded only against the 1st respondent. The court then dismissed the application itself, holding that final relief cannot be granted at the interlocutory stage, and awarded costs to the respondents.

Key legal issues

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01

Whether a suit against a deceased person is a nullity

Holding

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

Reasoning

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.

p. 2
02

Whether the suit is res sub judice given Succession Cause No. 189/1998

Holding

The suit is not sub judice; the prayers in the succession cause application differ and the two courts have different jurisdictions

Reasoning

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.

p. 4
03

Whether the application dated 2/06/2021 should be granted

Holding

The application is dismissed; final relief cannot be granted at an interlocutory stage

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The preliminary objection succeeds only on its first limb and only with regard to the case against the 1st respondent
  2. 2.The suit against the 1st respondent is a nullity as she was deceased when the suit was instituted
  3. 3.The application dated 2/06/2021 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 and Order 51
  • Civil Procedure ActSection 3A
  • Civil Procedure Rules, 2010Order 1 rule 3
  • Civil Procedure Rules 2010Order 37 rule 8
  • Civil Procedure Act (Cap 21)Section 6
  • Registered Land Act / Land Registration Act, 2012Order 37 rule 8 applications
  • Constitution of Kenya, 2010Articles 162(2) and 165(5)

Cases cited (6)

  • Ernest Ngugi Waithaka & 2 others v Peter Mutunga Gachigi
    [2017] eKLR
  • Benjamin Leonard Mcfoy –vs- United African Company Ltd
    (1961) All ER 1169
  • In Re Estate of Seth Namiba Ashuma (Deceased)
    [2020] eKLR
  • Olive Mwihaki Mugenda & another v Okiya Omtata Okoiti & 4 others
    [2016] eKLR
  • Vivo Energy Kenya Limited -v- Maloba Petrol Station Limited & 3 Others
    (2015) eKLR
  • Stephen Kipkebut t/a Riverside Lodge and Rooms -v- Naftali Ogola
    (2009) eKLR
Jurisdiction invoked
Articles 162(2) and 165(5) of the Constitution 2010; Environment and Land Court jurisdiction

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, "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.