Commission for Human Rights and Justice & another v Ibrahim Mwanje Zia t/a Ibado Enterprises & 11 others (Environment & Land Petition E016 of 2021) [2025] KEELC 453 (KLR)
The bottom line
#A Kenyan court struck out a claim against a man who died before being sued and threw out an unfought case where WhatsApp service lacked proof of delivery.
What this practically means
#Executive summary
#Key legal issues
#Whether the 4th respondent was properly served with the petition
The 4th respondent was not properly served; the affidavit of service showed WhatsApp messages sent to 'discount group', 'shimaka' and 'wanjohi' but not to the 4th respondent, with no delivery receipts.
The court perused the affidavit of service of Kevin Ngoli Shisanya filed on 14th October 2022 and found screenshots of WhatsApp messages sent to 'discount group', 'shimaka' and 'wanjohi', presumed to be the 3rd, 5th and 6th respondents. Nothing demonstrated service on the proprietors of Kashimir Investments. Without delivery receipts, service on the 4th respondent failed, and the proceedings against it were irregular.
Whether the petition against Shamusdeen Kashmiri Zauddin, who died before filing, was a nullity
Yes; the petition against him was a nullity ab initio and his name must be struck out.
The suit property's title showed Shamusdeen Kashmiri Zauddin as a proprietor registered on 6th November 2020, and his death certificate showed he died on 21st November 2020, while the petition was filed on 12th February 2021. A dead person could not instruct counsel or defend the petition, so the claim against him was a nullity incapable of being cured or taken over by a personal representative.
Whether the petition against the surviving proprietors of Kashimir Investments abated
No; where a deceased person is sued alongside living parties, the suit against the living parties continues and only the deceased's name is struck out.
Relying on Manyange (Deceased) v TG and the Indian decision Pratap Chand Mehta v Chrisna Devi Mehta quoted therein, the court held that a suit against multiple parties, one of whom was dead at institution, is not a nullity; the dead party's name is struck out and proceedings continue against the rest. Shahed Shamsu Deen Kashmiri and Sajjad Kashmiri remained registered owners of the suit property, so the petition against them was properly before the court.
Whether the application contravened Order 9 Rule 6 of the Civil Procedure Rules
No; the firm of Ernest Mogaka & Associates was not on record for any other party and no evidence showed it was acting for the 5th respondent.
The court confirmed from the record that the 4th respondent had never entered appearance or participated, and that Ernest Mogaka & Associates Advocates were not on record for any other party. The petitioners' assertion that the 5th respondent was hiding behind the 4th respondent was unsupported by any specific evidence, so no breach of Order 9 Rule 6 was established.
Legal principles established
#- A suit filed against a person already dead is a nullity which cannot be cured by a subsequently appointed personal representative.
- Where a deceased person was sued alongside others who are alive, the suit against the living parties does not abate; only the deceased's name should be struck out.
- Service via mobile messaging applications requires attachment of delivery receipts to prove effective service.
Court orders
#- 1.Declared the claim against Shamusdeen Kashmiri Shauddin, who died before commencement of the petition, null and void, and ordered his name struck out from the petition
- 2.Petitioners granted leave to file and serve an amended petition to reflect the striking out within 14 days
- 3.Proceedings against the 4th respondent, including those of 29th July 2024 culminating in fixing judgment for 6th November 2024, set aside
- 4.4th respondent granted leave to file and serve a response to the petition within 30 days from the date of the ruling
- 5.Petitioners granted corresponding leave to file and serve their response to any new issues of fact in the 4th respondent's reply within 14 days from service
- 6.Costs of the application to be in the cause
- Jurisdiction invoked
- Article 159(2) of the Constitution of Kenya; Sections 1A, 1B & 3A of the Civil Procedure Act; Order 1 Rule 10(2) and Order 2 Rule 15(1) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Commission for Human Rights and Justice & another v Ibrahim Mwanje Zia t/a Ibado Enterprises & 11 others (Environment & Land Petition E016 of 2021) [2025] KEELC 453 (KLR)", Case Analysis (2025). Not stated in the judgment (referenced only as a petition filed on 12th February 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/453/eng@2025-02-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.