Muthora (Suing as the administratix of the Estate of Loise Nyawira Muthiora alias Nyawira Muthiora) v Njuguna & 6 others (Environment & Land Case E347 of 2021) [2022] KEELC 3303 (KLR)
The bottom line
#A Kenyan court struck out a claim against a defendant who had already died, but froze all land transactions until the real dispute is decided.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit against the deceased 1st Defendant was a nullity
The suit was a nullity against the 1st Defendant as he died on 29/4/2019 before the suit was filed on 23/9/2021; the name was struck out, but the suit survived against other proper parties
The court adopted the authorities in Viktar Maina Ngunjiri, including the Indian decisions C. Muttu v Bharath Match Works and Pratap Chand Mehta, which hold that a suit against a dead person is a nullity from inception. However, following Pratap Chand Mehta, where a suit is filed against multiple persons one of whom is dead, only that party's name is struck out and the proceedings are not wholly void.
Whether the plaintiff's claim to recover land was time barred under Section 7 of the Limitation of Actions Act
The issue could not be determined at interlocutory stage owing to uncertainty as to when the cause of action accrued
Section 7 of the Limitation of Actions Act bars actions to recover land after twelve years from accrual of the right of action. The defendants argued the plaintiff knew of the fraud from 2007. The plaintiff countered that transfers were effected in 2017-2018 after the death of the registered co-owner and that the purported entries were irregular. Given the conflicting dates, the court deferred determination to trial.
Whether temporary injunction and inhibition orders should issue
All three Giella v Cassman Brown conditions were satisfied and both orders issued
The plaintiff, as administrator of a deceased registered co-owner, demonstrated a prima facie case with probability of success; the alleged transfers post-dated the co-owner's death. Damages would not adequately compensate given threatened eviction. The balance of convenience favoured the plaintiff. Interlocutory findings were expressly inconclusive pending trial.
Whether the administratrix should be joined and the plaint amended
Leave granted; the administratrix joined as 1st defendant and the plaint to be amended within 14 days
The court found it undisputed that Serah Njeri Njuguna is the administratrix of the deceased 1st defendant, who is the registered proprietor of Dagoretti/Riruta/1827, part of the suit property. Guided by the objective of joinder rules and Article 159(2)(d) of the Constitution, the court allowed the amendment in the interest of substantive justice.
Legal principles established
#- A suit instituted against a person already dead is a nullity from inception, but where the suit is against multiple defendants, only the claim against the deceased is a nullity and the remainder of the suit survives
- Limitation of actions in land recovery claims is a question of fact dependent on when the right of action accrued, generally unsuitable for determination at interlocutory stage where accrual is uncertain
Court orders
#- 1.The suit and all consequential proceedings against the 1st Defendant struck out
- 2.Serah Njeri Njuguna joined as 1st defendant; leave granted to the plaintiff to file and serve an amended plaint within 14 days
- 3.Peter Mburu Kariuki joined as 2nd plaintiff
- 4.Temporary injunction issued restraining the defendants from alienation, sale, disposal of, or interference with title to Land Parcels Dagoretti/Riruta/1827-1834 pending hearing and determination of the case
- 5.Inhibition order to the Chief Land Registrar inhibiting registration of any dealing with the said land parcels pending determination of the case
- 6.Each party to bear their own costs of the Applications
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes; Article 159(2)(d) of the Constitution invoked on substantive justice
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muthora (Suing as the administratix of the Estate of Loise Nyawira Muthiora alias Nyawira Muthiora) v Njuguna & 6 others (Environment & Land Case E347 of 2021) [2022] KEELC 3303 (KLR)", Case Analysis (2022). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3303/eng@2022-06-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.