Rashid v Kasyi & 2 others (Environment & Land Petition E021 of 2024) [2025] KEELC 3216 (KLR)
The bottom line
#A Mombasa court struck out claims against a respondent who died before the case was filed, ruling such suits are legally void from the start.
What this practically means
#Executive summary
#Key legal issues
#Suing a deceased person
The claim against the 1st respondent, who died on 7th September 2021 before the petition was filed, is a nullity ab initio and is struck out
Relying on Viktar Maina Ngunjiri v Attorney General, which quoted C. Muttu v Bharath Match Works and Pratap Chand Mehta v Chrisna Devi Meuta, the court held a suit against a dead man is a nullity from inception, incapable of amendment or joinder of a legal representative. The death certificate was undisputed and taken as proven.
Grant of judicial review orders at interlocutory stage
Certiorari prayers drafted in finality terms cannot issue at interlocutory stage; prohibition prayers properly framed pending hearing would not issue because the development permission had been revoked
Citing Republic v Judicial Service Commission Ex-Parte Pareno on the scope of judicial review and Wednesbury principle, the court held review remedies are granted at conclusion of proceedings, save in rare exceptional cases per Mugenda v Omtata. The 3rd respondent's revocation of the permission on 9th October 2024, unchallenged by the petitioner, removed the foundation of the application.
Security for costs
The 2nd respondent's prayers for security for costs and a declaration of bad faith became otiose
Having found the petitioner's application devoid of merit following revocation of the development approval, the court found no utility in ordering security for costs; both petitioner and cross-petitioner were advised to rethink their claims in light of the revocation.
Costs of the striking out application
No costs awarded because neither counsel on record for the deceased explained who instructed them
The court noted that neither Ms. J.M. Makau & Company Advocates nor Ms. Apollo Muinde & Partners offered an answer as to who instructed them on behalf of a party dead years before the petition, and in that state of affairs declined to award costs.
Legal principles established
#- A suit filed against a person who died before institution is a nullity from inception and cannot be cured by amendment or substitution
- Judicial review orders such as certiorari can only be granted after full hearing, save in exceptional circumstances, and finality-termed prayers cannot issue at interlocutory stage
Court orders
#- 1.The 1st & 2nd respondents' striking out application dated 15th October 2024, and prayer (3) of the 2nd respondent's application dated 16th October 2024 are allowed and the petitioner's claim against the 1st respondent is hereby struck out with no orders as to costs
- 2.The Petitioner's application dated 16th September 2024 is without merit and is struck out
- 3.The 2nd respondent's application dated 16th October 2024, with exemption of prayer (3) which has been allowed, is hereby struck out
- 4.The costs in respect of the applications dated 16th September 2024 and 16th October 2024 to abide the outcome of the petition and cross-petition respectively
- Jurisdiction invoked
- First-instance petition before the Environment and Land Court; judicial review remedies (certiorari and prohibition) sought in respect of development permission issued under the Physical and Land Use Planning Act 2019
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rashid v Kasyi & 2 others (Environment & Land Petition E021 of 2024) [2025] KEELC 3216 (KLR)", Case Analysis (2025). ELC Mombasa (Petition re development permission P/2024/00371) - three Notices of Motion dated 16th September 2024, 15th October 2024 and 16th October 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3216/eng@2025-04-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.