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ELCStruck OutEnvironment & Land Case E001 of 2021· [2023] KEELC 16456 (KLR)

Limbe v Wandhere & another

Environment and Land Court of Kenya
23 March 2023
AKA. Y. Koross
492 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out an entire land case because one defendant had died decades before the suit was filed.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Siaya (A.Y. Koross, J) arose during a plenary hearing on 1 February 2023 when it emerged that the 2nd defendant, Odero Ochieng, had died in 1977, and that the person attending court as 2nd defendant was his son, Charles Adego Odero. The court held that a suit against a deceased person is a nullity from inception and a legal representative of the estate cannot be joined in the proceedings, relying on Viktar Maina Ngunjiri & 4 others v Attorney General & 6 others [2018] eKLR, which approved Pratap Chand Mehta v Chrisna Devi Mehta AIR 1988 Delhi 219. The suit against the 2nd defendant was accordingly struck out as a nullity. The court then considered the cause of action against the 1st defendant, David Otieno Wandhere: the suit land, South Gem/Ndori 814, was registered in the names of the 1st defendant and the deceased as tenants in common in equal shares. Citing Chevron (K) Ltd v Harrison Charo Wa Shutu [2016], the court reiterated that adverse possession is maintainable only against registered owners. The plaintiff's claim being one for adverse possession, and the ownership structure involving both a living registered owner and a deceased co-owner whose estate could not be joined, the court found it would be an exercise in futility to proceed with the hearing against the 1st defendant. The court therefore struck out the entire suit and made no orders as to costs. The ruling was delivered virtually on 23 March 2023.

Key legal issues

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01

Effect of suing a deceased person

Holding

The suit against the 2nd defendant, who died in 1977, was a nullity from inception and was struck out.

Reasoning

Relying on Viktar Maina Ngunjiri v Attorney General, which approved the Indian decision of Pratap Chand Mehta v Chrisna Devi Mehta, the court held that a suit against a deceased person is a nullity from inception; a legal representative cannot be joined, and the suit is as if none had been filed against the deceased.

p. 1
02

Maintainability of adverse possession against co-registered owners as tenants in common

Holding

Adverse possession is maintainable against registered owners; the 1st defendant and the deceased held the land as tenants in common in equal shares with undivided interests.

Reasoning

The court noted the suit land was registered in the names of the 1st defendant and the deceased Odera Ochieng as tenants in common in equal shares, each holding an individual and undivided interest. Citing Chevron (K) Ltd v Harrison Charo Wa Shutu, adverse possession lies against registered owners.

p. 2
03

Whether the whole suit should be struck out

Holding

The court struck out the entire suit, holding it futile to proceed against the 1st defendant given the ownership circumstances.

Reasoning

Because the deceased co-owner's estate could not be joined (the suit against him being a nullity) and the claim lay against both registered owners, the court found continuing the hearing against the 1st defendant alone would be an exercise in futility and struck out the whole suit.

p. 2

Legal principles established

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  • A suit against a deceased person is a nullity from inception and a legal representative of the estate cannot be joined in the proceedings.
  • A claim for adverse possession can only be maintained against a registered owner of the land.

Court orders

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  1. 1.The suit against the 2nd defendant (Odero Ochieng, deceased) is struck out as a nullity
  2. 2.The entire suit is struck out
  3. 3.No orders as to costs

Authorities

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Cases cited (3)

  • Viktar Maina Ngunjiri & 4 others v Attorney General & 6 others
    [2018] eKLR

    A suit against a deceased person is a nullity from inception; a legal representative cannot be joined.

  • Pratap Chand Mehta v Chrisna Devi Mehta
    AIR 1988 Delhi 219

    Persuasive authority approving the nullity principle for suits against deceased persons.

  • Chevron (K) Ltd v Harrison Charo Wa Shutu
    [2016]

    A claim for adverse possession can only be maintained against a registered owner.

Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act over disputes relating to land (adverse possession claim against registered owners of South Gem/Ndori 814)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Limbe v Wandhere & another", Case Analysis (2023). Environment & Land Case E001 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16456/eng@2023-03-23

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