Mulinge & 2 others v Mponda & 5 others (Environment & Land Case 120 of 2011) [2022] KEELC 3125 (KLR)
The bottom line
#A Kenyan court voided legal costs proceedings started in the name of a deceased person, confirming lawsuits cannot continue in a dead person's name without proper legal authority.
What this practically means
#Executive summary
#Key legal issues
#Whether taxation proceedings instituted in the name of a deceased party are valid
They are a nullity void ab initio; the Plaintiffs demonstrated this and are entitled to the orders sought
Taxation proceedings are sui generis but flow from the substantive suit; the 1st Defendant was alleged to have been deceased when the Party and Party Bill of Costs was filed, and no grant of administration was produced. The advocates, as officers of the court, bore the burden of disproving the death allegation once raised but filed no replying affidavit, leaving the application unopposed and the allegation unrebutted.
Burden of proof regarding the alleged death of the 1st Defendant
The burden lay on the advocates who instituted the taxation proceedings to disapprove the alleged death; their deliberate silence permitted an adverse inference
Applying Sections 107 and 112 of the Evidence Act, the court found the death of the client was within the special knowledge of the advocates who instituted the taxation proceedings. They filed no replies under Order 51 of the Civil Procedure Rules and only filed submissions, which the court treated as submissions from the bar unsupported by affidavit or documentary evidence.
Costs of the application
Costs follow the event under Section 27 of the Civil Procedure Act and were awarded to the successful Plaintiffs
The court invoked Section 27 of the Civil Procedure Act and the principle that costs follow the events. Having succeeded in prosecuting the application, the 1st and 2nd Plaintiffs/Applicants were awarded costs against the 1st Defendant/Respondent.
Legal principles established
#- Taxation proceedings instituted in the name of a deceased person, without grant of letters of administration, are a nullity void ab initio
- Where a fact, such as a party's death, is especially within the knowledge of that party or their advocates, the burden of proving or disproving it lies on them; failure to rebut the allegation permits an adverse inference
- Opposition founded only on written submissions, without affidavits or documentary evidence, cannot defeat an unopposed application
Court orders
#- 1.That the Notice of Motion application dated 19th August, 2021 be and is hereby allowed for being meritorious with Costs
- 2.That the Costs for this application be granted to the 1st and 2nd Plaintiffs/Applicants to be borne by the 1st Defendant/Respondent
- Jurisdiction invoked
- Sections 1, 1A and 3A of the Civil Procedure Act, Cap. 21
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mulinge & 2 others v Mponda & 5 others (Environment & Land Case 120 of 2011) [2022] KEELC 3125 (KLR)", Case Analysis (2022). Notice of Motion application dated 19th August, 2021 in the principal suit (Plaint dated 5th May, 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3125/eng@2022-05-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.