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ELCStruck OutNot stated in judgment· [2023] KEELC 583 (KLR)

Thomas Mugiria & others v 1st Defendant & others (application to amend plaint)

Environment and Land Court
8 February 2023
2,138 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court struck out a land suit entirely because some named plaintiffs had died before it was filed — no amendment could fix it.

What this practically means

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Executive summary

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Before the Environment and Land Court (C.K. Nzili, ELC Judge) was the plaintiffs' application dated October 25, 2022 seeking leave to amend the plaint to join Ruth Kaburo, Joseph Mulwa Mutua and Teresia Rimba Buamba as additional defendants, on the ground that the 1st defendant had subdivided and transferred the suitland during the pendency of the suit. The application, supported by the affidavit of Thomas Mugiria and founded on Order 8 Rule 3 of the Civil Procedure Rules, was unopposed by the defendants; the plaintiffs relied on Inter Tropical Timber and Lewar Ventures for the proposition that amendments necessary for effectual determination should be allowed. The court, however, traced a litigation history riddled with defects: the plaint of February 3, 2010 was instituted with a consent purportedly signed by dead parties, the deaths of the 2nd and 11th plaintiffs having been brought to the court's attention as early as 2010 and 2011; an earlier amendment application of December 16, 2021 was refused; and a further amended plaint was filed on August 23, 2022 without leave. Invoking Macfoy, C Mattu, Geeta Bharat Shah, Japhet Nzila Muangi and Gladys Njeri Muhura, the court held that a suit founded on dead parties is a nullity ab initio and incurable by amendment, and that a court must down its tools where a suit involves a dead person. The plaintiffs' authorities were distinguished. The application was dismissed and the entire suit struck out as a nullity ab initio, with no orders as to costs; the 4th defendant was permitted to prosecute his counterclaim.

Key legal issues

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01

Whether leave to amend the plaint and join additional defendants should be granted

Holding

The discretion under Order 8 Rule 3 must be exercised judicially; here it was refused because the suit itself was a nullity, the deponent was oblivious of prior court orders, and the application sought to revive issues already determined

Reasoning

The court traced the history of the suit: plaintiffs had earlier amendments allowed, failed to comply, and filed a further amended plaint without leave. Title deeds showed registration as early as 2020, contradicting the claim that searches in October 2022 revealed the subdivision. Dead plaintiffs purported to give authority to sue, so the plaint was void from inception and no amendment could cure it.

p. 4
02

Effect of commencing a suit through dead plaintiffs

Holding

A suit brought by or against a dead person is a nullity ab initio, incurable by amendment, and the court has no jurisdiction to hear it

Reasoning

Relying on C Mattu v Bharath Match Workings, Geeta Bharat Shah, Japhet Nzila Muangi and Macfoy, the court held that a void act is a nullity and all proceedings founded on it are incurably bad; a court cannot put something on nothing and expect it to stand. The verifying affidavit and consent signed by dead parties rendered the plaint void from the onset.

p. 4

Legal principles established

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  • A suit brought against or by a dead person is a nullity from inception and cannot be cured by amendment, however bona fide the suit was brought
  • Once an act is void it is a nullity in law and every proceeding founded on it is incurably bad
  • Suits and actions must generally be prosecuted and brought against living parties
  • Where a court is moved in a suit filed against a dead person it is duty bound to down its tools for lack of jurisdiction

Court orders

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  1. 1.The application dated October 25, 2022 seeking leave to amend the plaint is dismissed as lacking merit
  2. 2.The entire suit is struck out as a nullity ab initio
  3. 3.No orders as to costs
  4. 4.The 4th defendant is at liberty to prosecute his counterclaim
Jurisdiction invoked
Order 8 Rules 3, 4 and 5 of the Civil Procedure Rules (amendment of pleadings); Article 162(2) jurisdiction of the Environment and Land Court implied by court designation

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, "Thomas Mugiria & others v 1st Defendant & others (application to amend plaint)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/583/eng@2023-02-08

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