Moses Masivai Barasa & another v Mohamed Akram Kaderdina; Mohamed Yasin M.A Kaderdina (as Sole Trustee of the Estate of Mohamed Akram Kaderdina (Applicant) [2021] KEELC 3177 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out an adverse possession suit filed against a landowner who had already died, declaring the entire case a nullity.
What this practically means
#Executive summary
#Key legal issues
#Validity of a suit instituted against a dead person
The Originating Summons and the purported substituted service were a nullity because Mohamed Akram Kaderdina died on 12th July 2014, over three years before the suit was filed on 24th November 2017.
The court found it uncontested that the registered proprietor was dead when the Originating Summons was filed, relying on the Certificate of Death (Annexture MYK2). Applying Order 1 Rule 3 of the Civil Procedure Rules and the principle in Mcfoy v United African Company Ltd, it held that a suit against a non-existent person is void ab initio, so the filing and service were a nullity and the resulting ex-parte judgment could not stand.
Whether a legal representative could be substituted to cure the defect
No - substitution is impossible because the deceased died before the suit was filed; there is nothing to take over.
The Plaintiffs had proposed in submissions that a legal representative be substituted in the Defendant's stead. The court rejected this, holding that substitution of an estate only applies where the deceased was alive at filing. Since the suit was in essence a nullity, the legal representative could not be called upon to take over proceedings founded on it.
Setting aside the ex-parte judgment and striking out the Originating Summons
The Motion dated 25th November 2019 was allowed; the ex-parte judgment was set aside and the Originating Summons struck out with costs.
Having found the suit a nullity, the court found merit in the Applicant's Motion and granted Prayers 2 and 7, setting aside the judgment of 26th June 2019 and striking out the Originating Summons and Supporting Affidavit, with costs to the Estate as sought at Prayer 8.
Legal principles established
#- A suit filed against a person who was already dead is void ab initio and is a nullity requiring no order to set it aside
- Proceedings founded on a void act are themselves bad and incurably bad and will collapse
- A deceased's estate can only take over proceedings where the deceased was alive when the suit was filed
Court orders
#- 1.Ex-parte judgment and decree entered on 26th June 2019 set aside
- 2.Originating Summons dated 23rd November 2017 and the Supporting Affidavit of the 1st Plaintiff struck out
- 3.Costs of the suit to the Estate of the late Mohamed Akram Kaderdina
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the adverse possession claim; application brought under the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moses Masivai Barasa & another v Mohamed Akram Kaderdina; Mohamed Yasin M.A Kaderdina (as Sole Trustee of the Estate of Mohamed Akram Kaderdina (Applicant) [2021] KEELC 3177 (KLR)", Case Analysis (2021). Malindi ELC Case (Originating Summons dated 23rd November 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3177/eng@2021-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.