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ELCStruck OutELCLOS NO. E009 OF 2024· [2025] KEELC 7131 (KLR)
Karisa & 15 others v Sherman; Kassim (Interested Party); Sherman (Intended Interested Party) (Enviromental and Land Originating Summons E009 of 2024) [2025] KEELC 7131 (KLR)
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·~5 min to read original · ~4 min briefThe bottom line
#Filing a Kenyan land suit against someone already dead voids it completely, and the court refused to save it by substituting new defendants.
What this practically means
#Executive summary
#Before the Environment and Land Court at Mombasa were two competing applications in a land suit commenced by originating summons dated 23rd February 2024 against Saleh Said Sherman (also known as Swaleh Nguru) as respondent, later amended on 25th September 2024 to add Yakub Shaban Kassim as interested party. Omar Saleh Sherman, an administrator of the respondent's estate, applied on 17th February 2025 to be joined as an interested party and to have the suit declared null and void and struck out on the ground that the respondent died on 1st April 1972, decades before filing. The applicants' own notice of motion dated 17th March 2025 sought substitution of three persons for the deceased respondent, arguing they had acted with due diligence since the title remained registered in the deceased's name and invoking Article 159(2)(d) and Order 2 Rule 14 against technicalities. The court framed three issues: whether the respondent was already dead when the suit was filed, whether substitution could salvage it, and costs. It found the fact of death unchallenged and, relying on Manyange (adopting C. Muttu) and Mac Foy, held a suit against a dead person is a nullity ab initio which substitution cannot cure, Order 24 Rule 4(4) applying only to death during the pendency of a suit. The application of 17th February 2025 was allowed with joinder of Omar Saleh Sherman as 2nd interested party, and the suit was declared null and void and struck out with costs, while the applicants' application was dismissed with costs.
Key legal issues
#01
Effect of filing suit against a person already deceased
Holding
The suit is a nullity ab initio and must be struck out; substitution cannot save it
Reasoning
The court found, unchallenged, that the respondent died on 1st April 1972 while the originating summons was filed in 2024. Following Manyange (citing C. Muttu) and Mac Foy, a suit against a dead person is a nullity from inception, and a subsequent amendment or substitution order is equally a nullity, regardless of the plaintiff's bona fides. Order 24 Rule 4(4) was held inapplicable as it addresses death during, not before, proceedings.
p. 4
Legal principles established
#- A suit filed against a person who was already dead at the time of filing is a nullity from inception and cannot be cured by substitution of a legal representative
- Order 24 Rule 4(4) of the Civil Procedure Rules governs substitution only where a defendant dies during the pendency of the suit, not before filing
- Costs follow the event under section 27 of the Civil Procedure Act
Court orders
#- 1.The applicants' notice of motion dated the 17th March 2025 is dismissed with costs
- 2.The intended interested party is joined in this proceeding as the 2nd interested party
- 3.The suit commenced through the amended originating summons dated 25th September 2024 against a deceased respondent is struck out with costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court; applications under the Civil Procedure Act (Cap 21) and Civil Procedure Rules (Order 24; Order 2 Rule 14) with Article 159(2)(d) of the Constitution invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Karisa & 15 others v Sherman; Kassim (Interested Party); Sherman (Intended Interested Party) (Enviromental and Land Originating Summons E009 of 2024) [2025] KEELC 7131 (KLR)", Case Analysis (2025). ELCLOS NO. E009 OF 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7131/eng@2025-10-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.