Godfrey Ngatia Njoroge v James Ndungu Mungai; Jane Nyambura Kamau & 2 others (Interested parties) [2021] KEELC 1618 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Interested Parties should be enjoined in the suit
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
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.
Whether the judgment of 28th June 2019, the decree of 11th July 2019 and the consequential conveyance should be set aside or cancelled
The proceedings, judgment and decree are declared a nullity; the prayers in the application were allowed, including cancellation and expungement of the conveyance
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.
Legal principles established
#- 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
#- 1.The Notice of Motion dated 11th November 2020 is allowed in terms of prayers No. 5, 6, 7 and 8
- 2.The Interested Parties are necessary parties, but the suit having been filed against a deceased person, the proceedings are declared a nullity
- 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
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.