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ELCPartially AllowedThika ELC No. 773 of 2017· [2021] KEELC 1618 (KLR)

Godfrey Ngatia Njoroge v James Ndungu Mungai; Jane Nyambura Kamau & 2 others (Interested parties) [2021] KEELC 1618 (KLR)

Environment and Land Court
8 October 2021
2,616 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court cancelled a land judgment and transfer because the lawsuit was filed against someone who had died six years earlier.

What this practically means

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Executive summary

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By a Notice of Motion dated 11th November 2020, persons describing themselves as the widow, children and confirmed administrators of the estate of James Ndungu Mungai sought to be enjoined as interested parties in Thika ELC No. 773 of 2017, to vacate the judgment of 28th June 2019 and decree of 11th July 2019, and to cancel and expunge a conveyance dated 14th January 2020 transferring L.R 152/9 Kent Mere Limuru to the plaintiff. They argued that the defendant had died on 6th July 2011, six years before the suit was filed in 2017, so all proceedings were a nullity and no sale ever took place. The plaintiff opposed, asserting he was a bona fide purchaser for Kshs. 48,000,000 under a 2010 sale agreement, served by substituted service and Daily Nation advertisement, unaware of the death, and that the registered conveyance was lawful; he contended the disputes belonged in the succession cause. The court framed two issues: whether the applicants should be enjoined, and whether they were entitled to the orders sought. Applying Order 1 Rule 10(2) and Supreme Court joinder principles, it held the administrators were necessary parties with a recognisable stake, but they could not be joined because the suit, filed against a dead person, was a nullity from the onset. Relying on Viktar Maina Ngunjiri and McFoy v United Africa Company, it held there was nothing to set aside; the court declared the proceedings, judgment, decree and consequential transfer a nullity and allowed the application in terms of prayers 5, 6, 7 and 8, with costs to the plaintiff/respondent.

Key legal issues

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01

Whether the Interested Parties should be enjoined in the suit

Holding

They are necessary parties as administrators with a recognisable stake, but they cannot be enjoined because the suit itself was a nullity, having been filed against a deceased person

Reasoning

The court accepted the death certificate showing the defendant died on 6th July 2011, while the suit was filed in 2017. Citing Order 1 Rule 10(2) jurisprudence and the Supreme Court's criteria for joinder of interested parties, it found the administrators had a stake and were necessary for effectual adjudication. However, following Viktar Maina Ngunjiri, a nullity cannot be cured by joining a legal representative; even if identified, it is not possible to take over a nullity.

p. 3
02

Whether the judgment of 28th June 2019, the decree of 11th July 2019 and the consequential conveyance should be set aside or cancelled

Holding

The proceedings, judgment and decree are declared a nullity; the prayers in the application were allowed, including cancellation and expungement of the conveyance

Reasoning

Since the defendant died six years before the suit was filed, the pleadings, judgment, decree and consequential transfer of the suit property were null and void ab initio. Relying on McFoy v United Africa Company, an act that is void is incurably bad and needs no order to set it aside, but the court considered it prudent to declare the nullity expressly because the judgment and decree had effected a change of proprietorship in the suit property.

p. 3

Legal principles established

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  • A suit filed against a person who was already dead at the time of filing is a nullity from the onset, and all orders and proceedings founded on it are null and void
  • Where proceedings are a nullity, there is nothing for the court to set aside; the court merely declares the nullity
  • Administrators of a deceased person's estate are the persons legally obligated to protect the interests of the estate

Court orders

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  1. 1.The Notice of Motion dated 11th November 2020 is allowed in terms of prayers No. 5, 6, 7 and 8
  2. 2.The Interested Parties are necessary parties, but the suit having been filed against a deceased person, the proceedings are declared a nullity
  3. 3.Prayers 5, 6, 7 and 8 of the Notice of Motion (as numbered in the ruling, corresponding to enjoining, vacating the judgment of 28th June 2019 and decree of 11th July 2019, cancellation of the conveyance dated 14th January 2020 and expungement from the register) granted

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure RulesOrder 6 Rule 17

Cases cited (6)

  • Habiba W. Ramadhan & 7 others vs Mary Njeri Gitiba
    (2017) eKLR
  • Communications Commission of Kenya & 4 others vs Royal Media Services Limited & 7 others
    [2014] eKLR
  • Meme v. Republic
    [2004] 1 EA 124
  • Viktar Maina Ngunjiri & 4 others vs Attorney General & 6 others
    [2018] eKLR
  • Pratap Chand Mehta vs Chrisna Devi Meuta
    AIR 1988 Delhi 267
  • Benjamin Leonard Mc Foy vs. United Africa Company Limited
    [1961] All ER 1169
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court; application under Order 1 Rule 10(2) of the Civil Procedure Rules to enjoin interested parties and set aside judgment

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, "Godfrey Ngatia Njoroge v James Ndungu Mungai; Jane Nyambura Kamau & 2 others (Interested parties) [2021] KEELC 1618 (KLR)", Case Analysis (2021). Thika ELC No. 773 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1618/eng@2021-10-08

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