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ELCPartially AllowedEnvironment & Land Case 106 of 2018· [2023] KEELC 22014 (KLR)

Bandari & another v Gilani

Environment and Land Court at Mombasa
5 December 2023
LNL.L. Naikuni
7,879 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~32 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court in Mombasa stopped a judgment against a deceased man's estate but refused to kill the land dispute outright.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (Naikuni J) determined a Notice of Motion dated 22nd February 2023 brought by Abdul Gula Hussein Gilani, legal representative of the estate of the deceased defendant Gulamhussein Hasham Gilani, in an adverse possession suit filed by Musa Mohamed Bandari and Nasiri Mwinyihaji Masemo against Plot MSA/MS/Block II/124. The Applicant sought arrest of the judgment scheduled for 23rd February 2023 and striking out of the Plaint on the ground that the suit, filed in 2018 against a person who died on 11th July 2013, was a nullity ab initio. The Plaintiffs opposed, relying on substituted service effected under Order 5 Rule 17 and contending the application was designed to delay justice. The Court framed three issues and partially allowed the application. It granted the arrest of judgment, resting on the Court's inherent powers and the constitutional guarantees of fair hearing and natural justice, giving the Applicant benefit of the doubt despite unexplained delay. However, it declined to strike out the suit. Although concurring with the line of authority that suits against dead persons are nullities, the Court gave reasons to differ: the Plaint disclosed a reasonable adverse possession cause of action; the title deed showed the property held as tenants in common in equal undivided shares with a surviving co-owner, Alnoor Ismail Thobani, retaining a stake under Section 91 of the Land Registration Act; the Applicant failed to annex the Probate Will or schedule of assets proving the deceased's ownership; service had been effected and the estate aware of proceedings; and striking out is a draconian, discretionary remedy exercised only in plain cases. The Court directed joinder of Thobani as 2nd Defendant with substituted service, allowed amendment of the Plaint, permitted the Defendants to recall witnesses under Section 146(4) of the Evidence Act, and fixed the suit for hearing on 5th June 2024. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether judgment could be arrested after the close of the Plaintiffs' case

Holding

The Court granted the arrest of judgment, invoking its inherent powers and the constitutional rights to fair hearing and natural justice

Reasoning

The Court held that although no specific provision governs arrest of judgment in the ELC, its inherent powers under Sections 1, 1A, 3 and 3A of the Civil Procedure Act and Articles 25(c), 47 and 50(1) and (2) of the Constitution justify the relief. The Applicant showed a legitimate interest as legal representative of the deceased's estate, and the Court granted the benefit of doubt in the interest of justice despite unexplained delay.

02

Whether a suit filed against a deceased person is a nullity that must be struck out

Holding

The Court declined to strike out the suit, distinguishing the general rule that a suit against a dead person is a nullity

Reasoning

While concurring with the authorities that suing a dead person ordinarily renders a suit a nullity, the Court gave five reasons to differ: the Plaint disclosed a reasonable adverse possession cause of action; the property was held as tenants in common with a surviving co-owner retaining a stake; the Applicant failed to attach the Probate Will or schedule of assets to prove the deceased's ownership; service was properly effected by substitution and the estate was aware of proceedings; and striking out is a draconian discretionary remedy exercised only in plain cases.

p. 10
03

Whether the co-joint owner should be joined

Holding

The Court directed joinder of Alnoor Ismail Thobani as 2nd Defendant with substituted service

Reasoning

Because the title deed showed the property held as tenants in common in equal undivided shares, the Court found it imperative that the co-owner be joined to enable complete adjudication of all questions, requiring amendment of the Plaint under Order 8 Rule 3 and Order 1 Rule 10(4) of the Civil Procedure Rules.

p. 13

Legal principles established

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  • A suit filed against a person already dead is ordinarily a nullity ab initio, but the jurisdiction to strike out pleadings is discretionary and must be exercised judicially; where a reasonable cause of action is disclosed, the suit should proceed to trial
  • Upon the death of a tenant in common, the deceased's share devolves to their estate; the absence of the doctrine of survivorship means the suit does not merely abate

Court orders

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  1. 1.Notice of Motion dated 22nd February 2023 partially allowed: order granted arresting delivery of Judgment scheduled for 23rd February 2023 pending hearing and determination of the suit
  2. 2.Prayer seeking to have the suit struck out disallowed
  3. 3.1st and 2nd Plaintiffs granted leave of 21 days to amend the Plaint by joining Alnoor Ismail Thobani as 2nd Defendant
  4. 4.Plaintiffs directed to effect substituted service upon the 2nd Defendant by publication in the Daily Nation newspaper
  5. 5.1st and 2nd Defendants granted leave of 21 days to comply with Orders 6, 7 and 11 of the Civil Procedure Rules
  6. 6.Plaintiffs granted leave of seven days to file and serve further lists of documents and witness statements
  7. 7.Matter to be heard on 5th June 2024; mention on 4th March 2024 for compliance and pre-trial conference under Order 11
  8. 8.1st and 2nd Defendants at liberty to invoke Section 146(4) of the Evidence Act to recall any Plaintiff witness for cross-examination and re-examination
  9. 9.Each party to bear their own costs
Jurisdiction invoked
Article 162(2)(b) of the Constitution; Sections 3, 13 and 19 of the Environment & Land Court Act, No. 19 of 2011; inherent powers under Sections 1, 1A, 3 and 3A of the Civil Procedure Act

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, "Bandari & another v Gilani", Case Analysis (2023). Environment & Land Case 106 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22014/eng@2023-12-05

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