Obore v Sherman; Shaban & another (Interested Parties) (Enviromental and Land Originating Summons E001 of 2023) [2024] KEELC 4852 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out an entire land suit because it was filed against someone who had died 51 years earlier — you cannot sue a dead person.
What this practically means
#Executive summary
#Key legal issues
#Whether a suit filed against a person dead at the time of filing is valid
The suit is a nullity ab initio. The Defendant died on 1st April, 1972, some 51 years before the suit was filed on 7th July, 2023, and the suit was therefore a nullity from inception.
Relying on C. Muttu v Bharath Match Works, Pratap Chand Mehta v Chrisna Devi Meuta, and the Court of Appeal decision in Geeta Bharat Shah v Omar Said Mwatayari, the court held that a suit against a sole dead defendant is a nullity; no writ, order or amendment can sustain it, and the Court of Appeal authority binds this court. The death was proved by the certificate of death annexed as ASSS-2.
Whether the estate of the deceased defendant could be joined or substituted
No. Substitution under Order 24 Rule 4 applies where the defendant was alive when the suit was filed; here the action was a nullity from the start, so joinder of legal representatives is not available.
The court distinguished the situation where a defendant dies after filing, where the legal representative may be brought in and the suit proceeds or abates under Order 24 Rule 4. Where the defendant was already dead at filing, the suit is against nobody and no amendment or joinder under Order 1 Rule 10 or Order 6 Rule 17 can cure it.
Whether the Intended Interested Parties could be joined as interested parties
The prayer to join the 2nd Intended Interested Party failed; the 1st Intended Interested Party's application was struck out because no suit existed to be joined to.
The court noted the distinction between 'join' (to add a party) and 'enjoin' (to injunct), citing Re Estate of Barasa Kananje Manya, but held that even stretching Article 159 could not assist where the suit was itself a nullity. There being no suit in existence, neither intended interested party could be joined.
Legal principles established
#- A suit filed against a person who was already dead at the time of filing is a nullity from inception and cannot be salvaged by joining or substituting the legal representative of the deceased
- The only legal remedy for a suit instituted against a dead person is striking out
- Costs follow the event under Section 27 of the Civil Procedure Act, and the successful party is entitled to costs absent exceptional circumstances
Court orders
#- 1.That the Notice of Motion application dated 12th September, 2023 be and is hereby partially found to have merit thus allowed in respect to prayer 2 of the application
- 2.That the Notice of Motion application dated 17th August, 2023 be and is hereby struck out on account that the suit was instituted against a dead person thus clearly there was no suit to begin with
- 3.That the Court issues an order striking out the suit filed via Originating Summons dated 7th July, 2023 against Saleh Saidi Sherman who has been deceased for the past 51 years
- 4.That the costs of the Notices of Motion applications dated 17th August, 2023 and 12th September, 2023 awarded to the Applicants
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court; applications brought under Order 1 Rule 10 of the Civil Procedure Rules, 2010 and Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Obore v Sherman; Shaban & another (Interested Parties) (Enviromental and Land Originating Summons E001 of 2023) [2024] KEELC 4852 (KLR)", Case Analysis (2024). Not stated in judgment (suit instituted by Originating Summons dated 7th July, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4852/eng@2024-06-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.