DANIEL KIPLANGAT RUTO v KIPKEMOI RUTTO & another
The bottom line
#A Kenyan court struck out a land suit filed against a person already dead, confirming you cannot sue a deceased person without legal representation.
What this practically means
#Executive summary
#Key legal issues
#Whether a competent suit existed against the 2nd Defendant
The suit against the 2nd Defendant was null and void ab initio because she died before the suit was filed; a nullity cannot be resuscitated
The death certificate annexed to the application showed the 2nd Defendant died on 24th April 2018, before the plaint dated 15th May 2018. Relying on C. Muttu v Bharath Match Works and Geeta Bharat Shah v Omar Said Mwatayari, the court held a suit against a dead person is a nullity from inception, and the court is duty bound to down its tools. The court could not infuse any remedy into it.
Whether the Applicant had locus standi against the 1st Defendant's estate
The Applicant lacked locus standi because his ad litem grant related to a different estate and he held no representation to the 1st Defendant's estate
The 1st Defendant's suit had abated on 8th March 2022 under Order 24 Rule 4(1). The Applicant's Letters of Administration ad litem in Kericho CM Ad Litem Cause No. 29 of 2018 concerned the estate of Daniel Kiplangat Rutto and parcel LR Kericho/Roret/936, not LR Kericho/Nyamanga/108 belonging to the 1st Defendant. Citing Isaya Masira Momanyi, a suit without letters of administration is null and void and cannot be cured retroactively.
Whether the abated suit should be revived and substitution allowed out of time
The court declined to revive the suit or permit out-of-time substitution, finding no sufficient cause and no competence in the underlying suits
Order 24 Rule 7(2) confers discretion to revive an abated suit on sufficient cause. The Applicant blamed the respondents and their counsel for the delay, but the explanations were not candid or plausible, and in any event both underlying suits were nullities — one filed against a dead person, the other prosecuted without locus standi — leaving nothing capable of revival.
Legal principles established
#- A suit filed against a person already dead is a nullity from inception and cannot be cured or resuscitated
- A suit commenced on behalf of a deceased person's estate without letters of administration is null and void ab initio and cannot be cured by subsequently obtaining the letters
- Locus standi is a primary point of law akin to jurisdiction; lack of capacity to sue renders a suit incompetent and is not a mere technicality
- Sufficient cause to revive an abated suit must be rational, plausible, logical, convincing, reasonable and truthful, leaving no unexplained gaps
Court orders
#- 1.The present suit against the 2nd deceased Defendant is struck out, being a nullity filed against a dead person
- 2.The Plaintiff's suit against the deceased Defendants cannot be revived for substitution of the deceased Defendants out of time
- 3.The application dated 9th October 2023 is dismissed with costs
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court; application under Order 24 Rules 4 and 7(2), Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "DANIEL KIPLANGAT RUTO v KIPKEMOI RUTTO & another", Case Analysis (2024). Kericho ELC Case No. 37 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3879/eng@2024-05-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.