Bee (Suing as the Legal Representative of the Estate of Packom Bee Kizito) v Omollo (Environment and Land Appeal E34 of 2023) [2025] KEELC 2942 (KLR)
The bottom line
#Kenya's High Court threw out a lawsuit that continued after key parties died without proper court-approved replacements — everything done was void.
What this practically means
#Executive summary
#Key legal issues
#Validity of substitution after abatement without revival
The substitution of the appellant after the suit had abated, without any application for revival, was a nullity; the consent recorded on 02/03/2022 was irregular and all proceedings founded on it were void
The court found the original plaintiff died on 06/11/2020 and the suit abated on 06/11/2021. Counsel recorded a consent allowing substitution out of time, but no application for revival of the abated suit was ever made. Relying on Julius Maina Kabiru and Mbaya Nzulwa, the court held substitution without revival is a nullity, and the procedure adopted was 'totally out of the blue and unknown in law'.
Delegation of ad litem capacity upon death of the personal representative
A personal representative's ad litem authority cannot be sub-delegated or passed to another person upon his death; fresh representation to the estate of the original claimant was required
Applying the maxim delegatus non potest delegare, the court reasoned that Packom Bee Kizito Kaluccie had taken a Limited Grant Ad Litem to sue on behalf of his father's estate. Upon his death, that capacity ended; a mere family 'nomination' of Daniel Ogedhi Bee was not a legally recognized authority under the Law of Succession Act, and no fresh limited grant was taken.
Effect of nullity on appeal founded on void proceedings
The appeal, being founded on null and void proceedings, was itself a nullity and collapsed; it was dismissed with the nullified judgment and decree set aside
Both counsel agreed the consent and all ensuing proceedings, including the judgment, were a nullity. The court applied the Mcfoy principle that a void act is incurably bad and every proceeding founded on it collapses. Accordingly the appeal was dismissed but with the consent, proceedings, judgment and decree declared nullities and set aside, with no costs.
Legal principles established
#- An act that is void is a nullity in law and every proceeding founded on it is equally bad and incurably bad
- An order for substitution without a revival of an abated suit is a nullity
- Authority granted ad litem cannot be sub-delegated or transferred to another person
Court orders
#- 1.The consent recorded on 02/03/2022 and all proceedings subsequent to it in Ndhiwa SRM Civil Case No. 30 of 2018, the judgment delivered on 14th June 2023 by Hon. E. M. Onzere SRM and the resultant decree are declared a nullity in law and are set aside
- 2.No costs to attach to the nullified proceedings as they constituted a mistrial arising from a mutually held mistaken belief
- 3.Each party to bear their own costs of both the appeal and the lower court
- 4.The appeal is dismissed on those terms
- On appeal from
- Senior Resident Magistrate's Court, Ndhiwa
- Civil Case No. 30 of 2018
- Jurisdiction invoked
- Appellate jurisdiction over appeals from the subordinate court (appeal admitted 7th November 2023); Law of Succession Act, Chapter 160 considered
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bee (Suing as the Legal Representative of the Estate of Packom Bee Kizito) v Omollo (Environment and Land Appeal E34 of 2023) [2025] KEELC 2942 (KLR)", Case Analysis (2025). Not stated on record (appeal from Ndhiwa SRM Civil Case No. 30 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2942/eng@2025-03-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.