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ELCStruck OutNotices of Motion dated 19th November 2024 & 2nd December 2024· [2025] KEELC 4363 (KLR)

Madressa El Mohamediah Education Society Registered Trustees v Seif & 2 others (As Trustees of Wakf) (Environment & Land Case E098 of 2024) [2025] KEELC 4363 (KLR)

Environment and Land Court
11 June 2025
2,885 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a land suit filed against trustees who had died years earlier, ruling the case was a nullity from the start.

What this practically means

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Executive summary

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The plaintiff, lessees under an indenture dated 9th March 1946 on premises on Mombasa/Block XX/184 and 185, moved the court by notice of motion dated 19th November 2024 seeking an interlocutory injunction restraining eviction after the defendant issued a forfeiture notice on 24th May 2024 alleging six years' rent arrears. The defendant, the Seif Bin Salim Trust, opposed through grounds of opposition and its own notice of motion dated 2nd December 2024 seeking striking out of the plaint and the plaintiff's application, on the ground that the persons sued as trustees (Said Bin Seif, Ali Bin Mohamed and Said Mohameed) had died on 23rd February 1999, 12th October 1975 and 3rd January 1987 respectively, rendering the suit a nullity. The plaintiff explained it had relied on a 1986 certificate of lease, that its requests for the names of current trustees were not answered, and that any misjoinder was a bona fide mistake curable by amendment under Order 1 Rules 9 and 10. The court framed three issues: the injunction threshold, whether the suit was defective for suing deceased trustees, and costs. Relying on binding Court of Appeal authority in Geeta Bharat Shah and related precedents on suits against deceased persons, the court held the suit a nullity ab initio and incapable of amendment, distinguishing Local Building and Construction since the plaintiff could have verified the register by official search. The defendant's application was allowed, the plaint and the plaintiff's application were struck out, and costs were awarded to the defendant under section 27 of the Civil Procedure Act.

Key legal issues

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01

Whether a suit filed against deceased trustees is a nullity capable of being cured by amendment

Holding

Yes, the suit is a nullity ab initio and the defendant's application to strike out succeeds

Reasoning

It was undisputed that all three trustees named as defendant had died years before the suit and had been replaced. Following binding Court of Appeal authority (Geeta Bharat Shah) and C. Muttu and Pratap Chand Mehta, a suit against a deceased sole defendant is a nullity from inception, and neither Order 1 Rule 10 nor Order 6 Rule 17 amendments can cure it. The plaintiff could have discovered the change of trustees by conducting official searches at the Land Registry, so the defendant was not to blame for non-disclosure.

p. 5
02

Whether striking out was justified despite the caution against striking out pleadings

Holding

The caution applies to weak but curable suits; a nullity is beyond redemption

Reasoning

The court accepted the D.T. Dobie and Musau principles that striking out is exercised sparingly, but distinguished Local Building and Construction because there the defendant concealed the misjoinder. Here the plaintiff bore responsibility to verify the register before filing, so sustaining the suit via amendment would avail nothing against a nullity.

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Costs

Holding

Defendant awarded costs as the successful party under section 27 of the Civil Procedure Act

Reasoning

Costs follow the event unless the court, for good reason, orders otherwise. The court found no reasonable cause to depart from that rule since the defendant prevailed on its striking-out application.

p. 6

Legal principles established

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  • A suit filed against a person who died before institution is a nullity from inception and cannot be salvaged by amendment or substitution
  • The power to strike out pleadings is discretionary and to be exercised with the greatest care and caution
  • Court of Appeal decisions are binding on the Environment and Land Court

Court orders

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  1. 1.The defendant's notice of motion dated 2nd December 2024 has merit and is allowed
  2. 2.The plaintiff's application dated 19th November 2024 and the plaint of even date are struck out
  3. 3.The defendant is awarded costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule 15
  • Civil Procedure RulesOrder 1 Rules 9 & 10
  • Civil Procedure RulesOrder 6 Rule 17
  • Civil Procedure RulesOrder 8 Rule 1
  • Civil Procedure Act, Chapter 21 Laws of KenyaSection 27

Cases cited (10)

  • Japhet Nzila Muangi versus Hamisi Juma Malee
    [2022] eKLR
  • Kenya Chemical and Allied Workers Union versus Milly Glass Works Ltd
    [2020] eKLR
  • Jones M. Musau & Another versus Kenya Hospital Association & Another
    [2017] eKLR
  • Crescent Construction Company Ltd versus Delphis Bank Ltd
    [2007] eKLR
  • Viktar Maina Ngunjiri & 4 Others versus Attorney General & 6 Others, High Court at Nairobi, Civil Suit No. 21 of 2016
    (2018) eKLR
  • C. Muttu versus Bharath Match Works
    AIR 1964 Kant 293
  • Pratap Chand Mehta versus Chrisna Devi Meuta
    AIR 1988 Delhi 267
  • Geeta Bharat Shah & 4 Others versus Omar Said Mwatayari & Another
    Mombasa Court of Appeal Civil Appeal No. 46 of 2008, (2009) eKLR
  • D. T. Dobie & Company (Kenya) Ltd versus Joseph Mbaria Muchina & Another
    [1980] eKLR
  • Local Building and Construction Ltd versus Institute of Blessed Virgin Mary Loreto Msongari & 2 Others
    [2019] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land in Mombasa/Block XX/184 & 185

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, "Madressa El Mohamediah Education Society Registered Trustees v Seif & 2 others (As Trustees of Wakf) (Environment & Land Case E098 of 2024) [2025] KEELC 4363 (KLR)", Case Analysis (2025). Notices of Motion dated 19th November 2024 & 2nd December 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4363/eng@2025-06-11

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