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ELCAllowedNot stated in the judgment (Originating Summons dated 22.08.2023)· [2024] KEELC 278 (KLR)

Maasay & another v Konchellah & 2 others (Enviromental and Land Originating Summons E005 of 2023) [2024] KEELC 278 (KLR)

Environment and Land Court
23 January 2024
1,469 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a land claim because the plaintiffs sued a dead man - always sue a deceased person's estate through their legal representative.

What this practically means

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Executive summary

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The Applicant, Kakui Lemasho Nawangas, legal representative of the 1st Defendant James Laton Konchellah holding a limited grant ad litem issued in Kilgoris P&A Cause No. E003 of 2022, filed a preliminary objection dated 11.10.2023 against the Respondents' Originating Summons dated 22.08.2023, which sought adverse possession over LR No. Transmara/Kimintet 'D'/850, 1309 and 1310. The objection raised four grounds: that the suit concerned a deceased person's estate; that no adverse possession claim lies against a deceased estate; that the deceased was posthumously sued contrary to Order 24 of the Civil Procedure Rules; and that the suit was an abuse of process. The court applied the Mukhisa Biscuit test for preliminary objections, finding the objection a pure point of law. It found as undisputed facts that the suit parcel remained registered in the name of James Laton Konchellah when the suit was filed, and that he had died on 30.05.2021, as confirmed by a death certificate issued on 16.06.2021. Holding that proceedings against a dead person are a nullity from inception and an abuse of the court process, the court allowed the preliminary objection and struck out the suit as against the 1st Defendant and the parcel LR No. Transmara/Kimintet 'D'/850, while the remainder of the Originating Summons survived. The Respondents were ordered to pay the Applicant's costs of both the preliminary objection and the originating summons. Judgment was delivered virtually in Kilgoris on 23 January 2024.

Key legal issues

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01

Whether an adverse possession claim can be brought against a deceased registered owner

Holding

No - a suit against a deceased person, named as 1st Defendant and still registered owner after death, is a nullity.

Reasoning

The court found as undisputed facts that the land parcel remained registered in the name of James Laton Konchellah when the OS was filed on 22.08.2023, and that Konchellah had died on 30.05.2021, evidenced by a death certificate issued 16.06.2021. Filing suit against a dead person renders the proceedings void ab initio notwithstanding a limited grant ad litem held by the legal representative.

p. 4
02

Whether the suit was an abuse of court process

Holding

Yes - a suit against a deceased person cannot be entertained and is a nullity.

Reasoning

Following from the finding that the named 1st Defendant was deceased when the suit was filed, the court held the proceedings could not stand. The proper course was to sue the estate through its legal representative, but the pleading as framed sued the deceased himself, rendering the claim against him and the subject parcel an abuse of process.

p. 4

Legal principles established

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  • A suit filed against a person already deceased is a nullity from inception and constitutes an abuse of the court process.
  • A preliminary objection is a pure point of law argued on the assumption that the facts pleaded by the other side are correct.

Court orders

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  1. 1.The preliminary objection dated 11.10.2023 is merited
  2. 2.The suit as against the 1st defendant James Laton Konchellah and the property known as LR No. Transmara/Kimintet 'D'/850 is struck out from the substantive originating summons dated 22.08.2023
  3. 3.The plaintiffs/respondents to meet the costs awarded to the applicant both in the preliminary objection dated 11.10.2023 and the originating summons dated 22.08.2023
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Limitation of Actions Act (adverse possession claim)

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, "Maasay & another v Konchellah & 2 others (Enviromental and Land Originating Summons E005 of 2023) [2024] KEELC 278 (KLR)", Case Analysis (2024). Not stated in the judgment (Originating Summons dated 22.08.2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/278/eng@2024-01-23

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