Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCOtherMakueni Environment and Land Court No. 336 of 2017 (Execution Application dated 30th July 2021)· [2022] KEELC 910 (KLR)

Mary Juster Makau v Nahashon Kingoo Wambua [2022] KEELC 910 (KLR)

Environment and Land Court
9 March 2022
TMT. Murigi
1,288 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to evict anyone because the party named had died four years earlier, and no legal representative had been substituted.

What this practically means

#

Executive summary

#
The Plaintiff, having obtained judgment on 14th May 2018 in an undefended trespass suit over parcel Makueni/Nguu Ranch/1536 (permanent and mandatory injunction, eviction, general damages of Kshs 100,000 and costs), filed an amended ex parte Notice of Motion dated 30th July 2021 seeking an order of eviction against the Respondent and a direction to the OCS Emali to enforce the decree. The application was listed inter partes on 24th January 2022 with no appearance for the Respondent. The affidavit of service sworn by Ali Simba Kalii on 7th January 2022 revealed that the process server met the Respondent's son, Charlse Kingoo, who informed him that the Defendant had died about four years earlier and was buried on the land; the documents were returned unserved as the Respondent was deceased. Counsel for the Applicant confirmed the death on 2nd December 2021. Applying Order 5 Rule 8(1) of the Civil Procedure Rules on personal service and Order 24 on substitution of legal representatives, and following the Court of Appeal decisions in Joseph Ngángá Njoroge v Kabiri Mbiti and Athman Omar Zuberi v Mamson Asol Apinde, the court held that proceedings cannot be maintained against a dead person and that no personal representative had been brought on record. The court found the application irregularly filed against a deceased party and held that it could not proceed as filed. No formal costs order was made.

Key legal issues

#
01

Whether execution proceedings can continue against a deceased party

Holding

The application was irregularly filed against a dead person; it cannot proceed and no personal representative has been brought on record

Reasoning

The process server's affidavit confirmed the Respondent died about four years before service was attempted, and the notice and motion were returned unserved. Order 5 Rule 8(1) CPR requires personal service, which is impossible against a deceased person. Order 24 CPR governs substitution of legal representatives, but none was brought in. Relying on Court of Appeal authority, the court held proceedings against a dead person are a nullity and the application could not proceed.

p. 3

Legal principles established

#
  • There can never be proceedings against a dead person; a personal representative should be brought into the suit by the decree holder

Court orders

#
  1. 1.The application dated 30th July 2021 cannot proceed as it is filed against a deceased party

Authorities

#

Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 5 Rule 8(1)
  • Civil Procedure RulesOrder 24 (rules 1, 2, 3)

Cases cited (2)

  • Joseph Ngángá Njoroge Vs Kabiri Mbiti
    (1986) eKLR
  • Athman Omar Zuberi Vs Mamson Asol Apinde
    (2012) eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and all other enabling provisions of the law

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mary Juster Makau v Nahashon Kingoo Wambua [2022] KEELC 910 (KLR)", Case Analysis (2022). Makueni Environment and Land Court No. 336 of 2017 (Execution Application dated 30th July 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/910/eng@2022-03-09

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