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ELCAllowedNot stated in judgment (Notice of Motion dated November 21, 2024)· [2025] KEELC 3176 (KLR)

Washe & 23 others v Mitchel; Harry & another (Applicant) (Enviromental and Land Originating Summons 7 of 2023) [2025] KEELC 3176 (KLR)

Environment and Land Court
3 April 2025
EME. K. Makori
1,541 words in judgment
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The bottom line

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A Kenyan court voided a land lawsuit filed against a man who had died over 30 years earlier, confirming such suits are dead on arrival.

What this practically means

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Executive summary

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The applicants moved the Environment and Land Court at Malindi by Notice of Motion dated November 21, 2024 seeking to set aside the judgment and decree of November 13, 2024 and to strike out the plaintiffs' Originating Summons dated October 24, 2023, on the ground that the sole named defendant, David Mitchel, had died on August 14, 1992 - over thirty years before the suit was filed. The court framed four issues: whether to join the applicants, whether to set aside the ex parte judgment, whether to strike out the suit, and costs. Counsel Wafula for the applicants submitted that proceedings cannot be initiated against a deceased person and relied on Juma v Shah, Viktar Maina Ngunjiri, the Indian authority Pretap Chad Mehta, and the Court of Appeal decision in Geeta Bharat Shah. Mr Makworo for the plaintiffs argued they acted in good faith and that striking out the claim absent a defence would be unfair. E. K. Makori J held that a suit filed against a deceased person is a nullity from inception and dead on arrival, that good faith and ignorance of death are irrelevant, and that the resulting judgment of November 13, 2024 was void ab initio. The court further held that no defence was required because the deceased could not instruct advocates, and that the null suit could not be revived by joining the administrators. The application was allowed with each party bearing its own costs, the court declining to condemn the plaintiffs, who were unaware of the death. Judgment delivered virtually at Malindi on April 3, 2025.

Key legal issues

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01

Effect of instituting a suit against a deceased person

Holding

A suit filed against a deceased person is a nullity from inception; the judgment obtained in it is void ab initio and must be set aside.

Reasoning

The sole defendant died in August 1992, long before the Originating Summons was filed in October 2023. Citing Juma v Shah, Viktar Maina Ngunjiri and Geeta Bharat Shah, the court held that proceedings cannot be initiated by or against a deceased person and that such a suit is a nullity irrespective of bona fides. The ex parte judgment of November 13, 2024 was therefore void and had to be set aside.

p. 2
02

Whether the suit could be sustained by joining the administrators or requiring a defence

Holding

No. A nullity cannot be cured by joinder, and no defence is required against a null suit since the deceased cannot instruct advocates.

Reasoning

The court rejected the respondents' argument that it would be unfair to strike out their claim when no defence was on record, holding that the defence argument applies only to a defendant capable of instructing advocates. A deceased defendant cannot do so, and the authorities establish that a null suit is as if no suit had been filed and cannot be revived by joining other parties.

p. 4
03

Relevance of the plaintiffs' good faith and ignorance of the death

Holding

Good faith and ignorance of the death are irrelevant; the suit remains a nullity.

Reasoning

The plaintiffs deposed that they were unaware of the defendant's death and acted in good faith, following proper substituted-service procedure. The court, following the Indian authority cited in Viktar Maina Ngunjiri, held it immaterial that the suit was brought bona fide and in ignorance of death. However, this concession informed the court's decision not to award costs against them.

p. 3

Legal principles established

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  • A suit instituted against a person who was deceased at the time of filing is a nullity from its inception, regardless of the plaintiff's good faith or ignorance of the death.
  • A judgment rendered in a suit filed against a deceased person is void ab initio.
  • The suit cannot be revived by joining the administrators or other parties once it was instituted against a deceased sole defendant.

Court orders

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  1. 1.The Notice of Motion dated 21st November 2024 is hereby allowed
  2. 2.Each party is to bear their own costs
  3. 3.Orders accordingly (DATED, SIGNED, AND DELIVERED VIRTUALLY AT MALINDI ON THIS 3RD DAY OF APRIL 2025)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the Notice of Motion dated November 21, 2024 (specific statutory basis not stated in the judgment)

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, "Washe & 23 others v Mitchel; Harry & another (Applicant) (Enviromental and Land Originating Summons 7 of 2023) [2025] KEELC 3176 (KLR)", Case Analysis (2025). Not stated in judgment (Notice of Motion dated November 21, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3176/eng@2025-04-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.