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ELCPartially AllowedNot stated in judgment (suit instituted by Originating Summons dated 7th July, 2023)· [2024] KEELC 4852 (KLR)

Obore v Sherman; Shaban & another (Interested Parties) (Enviromental and Land Originating Summons E001 of 2023) [2024] KEELC 4852 (KLR)

Environment and Land Court
11 June 2024
5,338 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (LL. Naikuni J, delivered 11th June 2024) determined two unopposed applications: a Notice of Motion dated 12th September, 2023 by Awadh Saleh Said Sherman, administrator of the estate of the defendant Saleh Said Sherman, and a Notice of Motion dated 17th August, 2023 by Yakub Shaban, administrator of the estate of Shaban Kassim Ribeiro, both seeking to be joined as interested parties in an adverse possession suit brought by Originating Summons dated 7th July, 2023. The plaintiff sued the defendant over Plot No. 777 (Orig. No. 207/2), claiming title by adverse possession. The court framed four issues: whether the defendant was dead when the suit was filed, the available remedies, whether the intended interested parties could be joined, and costs. Relying on C. Muttu v Bharath Match Works, Pratap Chand Mehta, Viktar Maina Ngunjiri, and the binding Court of Appeal decision in Geeta Bharat Shah, the court held that a suit filed against a person already dead - here dead 51 years before filing - is a nullity ab initio which cannot be cured by joining or substituting his legal representatives under Order 24 Rule 4, Order 1 Rule 10 or Order 6 Rule 17. The application dated 12th September, 2023 was allowed only in respect of prayer 2; the prayer for joinder failed, and the application dated 17th August, 2023 was struck out as there was no suit in existence. The court struck out the entire Originating Summons and awarded the applicants the costs of both applications.

Key legal issues

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01

Whether a suit filed against a person dead at the time of filing is valid

Holding

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.

Reasoning

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.

p. 7
02

Whether the estate of the deceased defendant could be joined or substituted

Holding

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.

Reasoning

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.

p. 8
03

Whether the Intended Interested Parties could be joined as interested parties

Holding

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.

Reasoning

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.

p. 9

Legal principles established

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  • 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

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  1. 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. 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. 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. 4.That the costs of the Notices of Motion applications dated 17th August, 2023 and 12th September, 2023 awarded to the Applicants

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 1 Rule 10 (including 10(2))
  • Civil Procedure Rules, 2010Order 24 Rule 4
  • Civil Procedure Act, Cap. 21Sections 1A, 1B, 3A
  • Civil Procedure Act, Cap. 21Section 2 (definition of legal representative)
  • Civil Procedure Act, Cap. 21Section 27(1)
  • Constitution of Kenya, 2010Article 159

Cases cited (12)

  • Japhet Nzila Muangi v Hamisi Juma Malee
    [2022] eKLR, ELC No. 71 of 2016 (OS)
  • Mac Foy v United Africa Co. Limited
    [1961] All ER 1169
  • Mbigo Kadzo Tembo & another v Vincent Sabastian D'costa
    [2020] eKLR, ELC Case No. 88 of 2013 (OS)
  • Permet Ole Kiseet v Sylvia Moi & 3 Others
    eKLR
  • Viktar Maina Ngunjiri & 4 Others v Attorney General & 6 Others
    [2018] eKLR, Civil Suit No. 21 of 2016
  • C. Muttu v Bharath Match Works
    AIR 1964 Kant 293
  • Pratap Chand Mehta v Chrisna Devi Meuta
    AIR 1988 Delhi 267
  • Geeta Bharat Shah & 4 Others v Omar Said Mwatayari & Another
    [2009] eKLR, Civil Appeal No. 46 of 2008
  • Re Estate of Barasa Kananje Manya
    Kakamega Succession Cause No. 263 of 2002
  • Jasbir Rai Singh v Tarchalan Singh
    [2014] eKLR
  • Cecilia Karuru Ngayo v Barclays Bank of Kenya Limited
    [2014] eKLR
  • Hussein Muhumed Sirat v Attorney General & Another
    [2017] eKLR
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

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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, "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.