Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck OutEnvironment & Land Case E010 of 2022· [2023] KEELC 21130 (KLR)

Mwachiti & 7 others v Riga & 2 others; Mwakutwaa & 3 others (Interested Parties)

Environment and Land Court
31 October 2023
ADA.E. Dena
2,734 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court struck out a land suit filed against people who were already dead, ruling such a case is a legal nullity.

What this practically means

#

Executive summary

#
The plaintiffs filed an Originating Summons on 31 October 2022 claiming adverse possession over Plot No. Kwale/Maweche/205, 206, 207 and 208 (formerly 186) against three defendants. The defendants' children (Bakari Salim Mwakutwaa, Said Salim Mwakutwaa, Zainab Ndaba Kassim and Mwanafaki Hamisi Riga) applied by notice of motion dated 5 December 2022, supported by death certificates, to be joined as interested parties and to have the suit struck out on the ground that all three defendants were dead when the suit was filed - the 1st defendant on 1 January 2022, the 2nd on 25 April 2007 and the 3rd on 1 January 2000. The plaintiffs did not contest the deaths but urged that the applicants be substituted as defendants and represent the estates under section 54 of the Law of Succession Act and paragraph 14 of its 5th Schedule, relying on Meme v Republic for joinder. Dena J joined the applicants as interested parties for purposes of the application only, invoking Order 1 Rule 10(2) of the Civil Procedure Rules and the court's inherent powers. On the striking-out question, the court held it trite that a suit cannot be filed against a deceased person; following the cited authorities, the suit was void ab initio and a nullity that could not be resuscitated. Paragraph 14 of the 5th Schedule was held inapplicable because it applies only to suits pending during the deceased's lifetime and no limited grant had been issued. The application was allowed, the suit struck out, and, noting the plaintiffs' ignorance of the deaths, each party was directed to bear its own costs.

Key legal issues

#
01

Joinder of the applicants as interested parties

Holding

The applicants, being children/beneficiaries of the deceased defendants, were joined as interested parties for purposes of the application only

Reasoning

The court found the applicants ought to have been sued ab initio on behalf of the deceased defendants' estates and invoked Order 1 Rule 10(2) and the court's inherent powers to add them, limited to the application before the court.

p. 4
02

Effect of filing suit against deceased persons

Holding

The suit, filed when all defendants were already deceased, is void ab initio and was struck out

Reasoning

Death certificates confirmed all three defendants died before the suit was filed on 31/10/22. Following precedent, a suit against a dead person is a nullity; the court held a nullity cannot be resuscitated by infusing any remedy and can only be struck out.

p. 6
03

Whether paragraph 14 of the 5th Schedule to the Law of Succession Act could save the suit

Holding

Paragraph 14 applies only to pending suits filed during the deceased's lifetime, not suits filed after death

Reasoning

The court interpreted paragraph 14 as envisaging proceedings filed during the life of the property owner; since no suit was pending before the defendants' deaths and no limited grant had been issued, the provision could not aid the plaintiffs.

p. 5

Legal principles established

#
  • A suit filed against a deceased person is a nullity, void ab initio, and can only be struck out

Court orders

#
  1. 1.The application dated 5th December 2022 is merited and is allowed
  2. 2.The Plaintiffs suit herein commenced by the Originating Summons on 31st October 2022 is hereby struck out
  3. 3.Each party shall bear its costs

Authorities

#

Legislation

  • Civil Procedure Actsection 3A
  • Civil Procedure Actsection 27
  • Civil Procedure Rules 2010Order 1 Rule 10
  • Law of Succession Actsection 54
  • Law of Succession Actparagraph 14 of the 5th Schedule
  • Probate & Administration RulesPart IV

Cases cited (6)

  • Meme v Republic
    (2004) 1 EA 124

    reasons for joinder of a person to a suit

  • Peter Asituha & 3 Others v Olekia Mahindu Makunga & Ano
    ELC Appeal No. 14 of 2021

    estate of deceased sued through legal representative

  • Virginia Edith Wambui Otieno v Joash Ochieng Ougo & Another
    (1987) eKLR

    estate of deceased sued through legal representative

  • Viktar Maina Ngunjiri & 4 Others v Attorney General & 6 Others
    High Court at Nairobi Civil Suit No. 21 of 2016 (2018) eKLR

    suit against a dead defendant is null and void ab initio

  • Japhet Nzila Muangi v Hamisi Juma Malee
    Mombasa ELC No. 71 of 2016 (OS)

    suit filed against deceased persons

  • Geeta Bharat Shah & 4 Others v Omar Said Mwatayari & Another
    Civil Appeal No. 46 of 2008 (2009) EKLR

    judgment cannot be sustained where entered against a person already dead

Jurisdiction invoked
Order 1 Rule 10 of the Civil Procedure Rules 2010 and Section 3A of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mwachiti & 7 others v Riga & 2 others; Mwakutwaa & 3 others (Interested Parties)", Case Analysis (2023). Environment & Land Case E010 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21130/eng@2023-10-31

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