Omollo v Ogul (Environment and Land Appeal E046 of 2023) [2025] KEELC 6915 (KLR)
The bottom line
#A Kenyan court voided a judgment against a deceased defendant, but confirmed the judgment against his son, who failed to present any defence evidence.
What this practically means
#Executive summary
#Key legal issues
#Effect of failure to substitute a deceased defendant under Order 24 Rule 4 of the Civil Procedure Rules
The suit against the deceased abated and the judgment against him was a nullity
The Respondent’s claims against the Appellant and the deceased were separate and distinct. The deceased was never substituted and the Respondent chose to proceed only against the Appellant. By the date of hearing (10 February 2022) the suit against the deceased had abated, so the lower court had no power to enter judgment against him.
Whether the Respondent proved his claim against the Appellant on Plot No. 8431
Yes - the sale, payment, Ministry of Lands confirmation and encroachment (5m by 46m) were proved; the Appellant adduced no evidence
The Respondent produced the sale agreement of 7 January 2011, drawings, a Land Adjudication Officer’s letter confirming ownership, and the Appellant’s advocates’ letter admitting the sale and full payment. With no defence evidence, the Respondent’s evidence was uncontroverted and the finding unassailable.
Whether the trial court shifted the burden of proof to the Appellant
No - the burden remained on the Respondent who discharged it, whereupon it shifted to the Appellant to prove his allegation of unenforceability
Section 107 of the Evidence Act places the legal burden on the party desiring judgment. The Respondent proved purchase, payment and title confirmation; the Appellant, alleging the agreement was unenforceable, tendered no evidence and failed to discharge the evidential burden that then rested on him.
Duty of a first appellate court
The court must reconsider and re-evaluate the evidence and draw its own conclusions, bearing in mind it did not see or hear the witnesses
The court adopted the settled framework from Selle v Associated Motor Boat Co and Peters v Sunday Post, cautioning that the jurisdiction to review findings of fact is exercised with caution.
Legal principles established
#- A judgment entered in an abated suit against a deceased person is void, a nullity and incapable of execution
- The legal burden of proof rests on the party desiring the court to give judgment and remains constant; once a plaintiff establishes his claim, the burden shifts to a defendant alleging unenforceability
Court orders
#- 1.The judgment delivered by Hon. L. N. Kiniale SPM on 30th November 2023 in Nyando Senior Principal Magistrate’s Court ELC No. 25 of 2019 is set aside as against the 1st Defendant, Jacob Omollo Opiyo
- 2.The judgment shall not apply to the parcel of land known as Kisumu/Wawidhi B/6598, owned by 1st Defendant, Jacob Omollo Opiyo
- 3.The judgment against the Appellant is confirmed
- 4.Each party shall bear its costs of the appeal
- On appeal from
- Nyando Senior Principal Magistrate’s Court
- ELC No. 25 of 2019
- Jurisdiction invoked
- First appellate jurisdiction under Article 172 / Environment and Land Court Act, powers of the High Court on a first appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omollo v Ogul (Environment and Land Appeal E046 of 2023) [2025] KEELC 6915 (KLR)", Case Analysis (2025). Kisumu ELC Appeal No. E012 of 2024 (Memorandum of Appeal dated 29th December 2023 from Nyando SPMCC ELC No. 25 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6915/eng@2025-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.