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ELCPartially AllowedEnvironment & Land Case 61 of 2018· [2023] KEELC 18314 (KLR)

Ngala & 2 others v Mwangi; Mwangi (As Legal Representative of the Estate of Alice Waithera Mwangi, Deceased) (Applicant)

Environment and Land Court
26 June 2023
2,204 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling by S. M. Kibunja, J of the Environment and Land Court at Mombasa determined a notice of motion dated October 24, 2022 by Rosabell Muthoni Mwangi, legal representative of the estate of Alice Waithera Mwangi, the deceased defendant. She sought substitution for the deceased, revival of the suit, and setting aside of an ex parte judgment delivered on January 28, 2020 in which the plaintiffs had succeeded in an adverse possession claim over Kwale/Mwanguda/57. The plaintiffs opposed, asserting the land was ancestral, that service was effected by advertisement, and that they were unaware of the death. The court framed four issues: substitution, setting aside the judgment, fair orders, and costs. Relying on a death certificate showing the defendant died on November 24, 2009 - about nine years before the suit was filed in 2018 - the court held the plaintiffs had sued a dead person, that service by advertisement on a deceased person was impossible, and that the resulting judgment was a nullity which the court had jurisdiction to set aside, applying Patel v East Africa Cargo Services Ltd. The court allowed the application: it substituted the applicant as defendant, set aside the proceedings, judgment and decree as nullities, declared the plaintiffs' June 18, 2021 registration null and void, ordered the Land Registrar to rectify the register by cancelling entries after entry number 4 and reinstating the deceased as proprietor, and directed that costs of the application abide the outcome of the suit. The plaintiffs were given thirty days to file amended pleadings, and the substantive adverse possession claim remains to be heard on merits against the substituted defendant.

Key legal issues

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01

Whether judgment obtained against a deceased defendant is valid

Holding

Judgment against a dead defendant is a nullity and the court has jurisdiction to set it aside

Reasoning

The death certificate showed the defendant died on November 24, 2009, about nine years before the suit was filed in 2018. Service by advertisement on a dead person was incapable of bringing her before the court, so the ex parte judgment was irregularly obtained and liable to be set aside.

p. 4
02

Whether the applicant should be substituted for the deceased defendant

Holding

Yes - as administrator/legal representative she should be given an opportunity to defend the suit

Reasoning

The applicant obtained a limited grant of letters of administration on August 20, 2021 and expressed preparedness to be substituted. Substitution allows the estate to participate and the case to be decided after a merit hearing, which is the fair course even if plaintiffs were unaware of the death.

p. 4
03

Validity of the plaintiffs' registration as proprietors

Holding

Registration of June 18, 2021 declared null and void and register to be rectified

Reasoning

The plaintiffs' registration flowed from a judgment that was a nullity. The court therefore declared the registration null and void and ordered the Land Registrar to cancel all entries after entry number 4, reinstating the deceased as proprietor per entry number 3.

Legal principles established

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  • A suit against a dead person is a nullity and judgment obtained against a deceased defendant can be set aside
  • A suit against a defendant who dies during proceedings abates under Order 24 if no substitution application is filed within one year

Court orders

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  1. 1.Applicant substituted as defendant in her capacity as legal representative in place of Alice Waithera Mwangi, deceased
  2. 2.Plaintiffs to file and serve amended originating summons, list of witnesses, documents and statements within thirty (30) days
  3. 3.Proceedings, judgment of January 28, 2020 and decree thereon declared nullities and set aside as against a defendant who had died about nine years before filing
  4. 4.Registration of the plaintiffs as proprietors of the suit property on June 18, 2021 declared null and void
  5. 5.Land Registrar ordered to call for title documents issued to the plaintiffs and rectify the register by cancelling all entries after entry number 4, reinstating ownership to Alice Waithera Mwangi as per entry number 3
  6. 6.Costs in the application to abide the outcome of the suit

Authorities

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Legislation

  • Civil Procedure RulesOrder 24
  • Civil Procedure Actsection 27

Cases cited (3)

  • Patel versus East Africa Cargo Services Ltd
    [1974] EA 75

    Court's jurisdiction to set aside judgment irregularly obtained against a dead defendant

  • Mohamed Abushiri versus Suleiman Abdalla Hassan
    (2012) eKLR

    A suit against a dead person is a nullity

  • Latifa Yakb & 4 Others versus Ahanshudin M Kassam
    HCCC No 226 of 2000

    A suit against a dead person is a nullity

Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court to set aside irregularly obtained judgment; Order 24 Civil Procedure Rules; section 27 Civil Procedure Act (Cap 21)

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, "Ngala & 2 others v Mwangi; Mwangi (As Legal Representative of the Estate of Alice Waithera Mwangi, Deceased) (Applicant)", Case Analysis (2023). Environment & Land Case 61 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18314/eng@2023-06-26

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