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ELCStruck OutNot stated in the extract provided· [2022] KEELC 3554 (KLR)

Obiri v Elmi (Environment & Land Case E381 of 2021) [2022] KEELC 3554 (KLR)

Environment and Land Court
12 May 2022
LMLUCY N. MBUGUA
381 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~2 min to read original · ~4 min brief

The bottom line

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You cannot sue a dead person in Kenya—the court struck out the land claim entirely and told the plaintiff to pursue the deceased's estate instead.

What this practically means

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Executive summary

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The court was called upon to decide a single threshold question: whether the plaintiff's suit over Plot No 36/11/98 could continue in light of evidence that the defendant had died in the 1990s. Mohamed Ali Ibrahim, the defendant's brother, produced a death certificate showing that Ibado Elmi Badil died on October 10, 1990, together with a certificate of confirmation of grant issued on December 30, 2021 in respect of her estate. The plaintiff opposed, arguing that the death certificate was suspicious because it was obtained 27 years after the alleged death, and that it was unclear whether the deceased named in it was the same person sued as Ebado Elmi. The plaintiff alternatively sought leave to apply for joinder of Ibrahim Mohamed and the persons to whom the suit property had been distributed under the confirmed grant, namely Osman Elmi, Halima Elmi, Fatma Ahmed, Khadija Elmi and Mariam Elmi. The court found that the plot claimed by the plaintiff was the very property slated for distribution in the deceased's estate, concluding beyond doubt that the defendant sued was the deceased named in the grant, and declining to refute the death certificate. Because a suit against a deceased person is a nullity, the court held that the question of joinder could not be entertained within such a suit. The suit was struck out with no orders as to costs, and all earlier orders were discharged. The plaintiff's remedy, if any, lies in joining the estate proceedings rather than in this suit.

Key legal issues

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01

Sustainability of proceedings against a deceased defendant

Holding

The suit is a nullity and must be struck out once it is established that the defendant died before or during the proceedings

Reasoning

The court considered the affidavits and rival submissions. The defendant's brother availed a death certificate showing she died on October 10, 1990, and a certificate of confirmation of grant issued December 30, 2021. The property claimed by the plaintiff (Plot No 36/11/98) is the same property up for distribution in the deceased's estate, confirming the deceased defendant is the same person sued. A suit against a dead person cannot stand.

p. 2
02

Identity of the defendant with the deceased named in the death certificate and grant

Holding

The defendant sued is the same person named in the certificate of grant, the claimed plot being the same property in the estate for distribution

Reasoning

The plaintiff contested the identity, noting the death certificate was obtained 27 years after the alleged death and questioning whether Ibado Elmi Badil was the same person as Ebado Elmi. The court found the claimed property, Plot No 36/11/98, was the same property marked for distribution in the estate, and declined to refute the death certificate despite the delay in obtaining it.

p. 1

Legal principles established

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  • A suit against a deceased person is a nullity and cannot be sustained; ancillary issues such as joinder cannot be entertained in such a suit

Court orders

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  1. 1.The suit is struck out as the Defendant is deceased
  2. 2.Any orders given earlier are discharged
  3. 3.No orders as to costs
Jurisdiction invoked
Original civil jurisdiction over land claims; suit struck out as a nullity upon death of the defendant

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Obiri v Elmi (Environment & Land Case E381 of 2021) [2022] KEELC 3554 (KLR)", Case Analysis (2022). Not stated in the extract provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3554/eng@2022-05-12

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