Muiyae & another v Muraya (As the Administrator of the Estate of the Late Samuel Ngugi Muraya) & another (Enviromental and Land Originating Summons 2B of 2020) [2024] KEELC 1177 (KLR)

Succession Cause No. 412 of 2011 at Milimani Nairobi concerned the same parcels. The parties in this suit are the same as those in the succession cause. The High Court already determined ownership; the proper remedy was an appeal, not a fresh suit. The claim that the High Court lacked jurisdiction over land fails because under Article 165(3)(a) the High Court has unlimited original civil jurisdiction, including distribution of estates.

Order 24 CPR only allows continuation of suits where a party dies mid-suit; it does not permit filing against a dead person. The death certificate shows Samuel Ngugi Muraya died on 19/7/2013, yet the suit was filed on 30/1/2020, over six and a half years later. A dead person cannot defend themselves, making such a suit an abuse of court process.

Order 37 CPR confines originating summons to matters unlikely to involve substantial dispute of fact. This suit concerned disputed sale agreements, disputed subdivision, cancellation of titles, and eviction of 23 parties - all hotly contested facts. Though a suit should not be struck out unless irredeemable, commencing by originating summons was fatally inappropriate.