Ngaruni (Suing as the legal representative of the Estate of Kirichu Ngaruini) & 5 others v Tharibu & 19 others (Environment and Land Appeal E068 of 2025) [2025] KEELC 7499 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out an appeal filed for dead parties and made their lawyer personally pay the costs.
What this practically means
#Executive summary
#Key legal issues
#Whether dead appellants can prosecute an appeal
The appeal by the deceased 2nd, 3rd, 4th and 6th appellants is invalid and a nullity ab initio
An appeal, being a suit under section 2 of the Civil Procedure Act, can only be filed by a living legal entity. Where a party dies before lodging an appeal, only a legal representative with a grant of letters of administration (section 82, Law of Succession Act) may prosecute it. A dead person cannot issue instructions to counsel, so the appeal is void ab initio per Mcfoy v United Africa Ltd.
Whether paragraphs 2, 3, 4 and 11 of the supplementary affidavit raised new issues
They did, in breach of the court's express orders of 8th October 2025 confining the affidavit to responding to the replying affidavit
The order of 8th October 2025 granted leave for a supplementary affidavit confined to responding to the replying affidavit and expressly barred new issues. Introducing new issues deprives the adverse party of the opportunity to respond, offending the right to fair hearing under Article 50 of the Constitution.
Validity of the supplementary affidavit under Order 19 rules 2 and 3
The affidavit is invalid and liable to be struck out and expunged
Counsel may not depone to contentious evidentiary matters, per the Supreme Court in Odinga v Ruto echoing Ringera J in Kisya Investments. Further, the deponent relied on information and belief without disclosing sources, rendering the averments inadmissible hearsay under Order 19 rules 2 and 3. Counsel for the appellants conceded these defects.
Legal principles established
#- An appeal by or on behalf of a deceased person lodged without a legal representative holding a grant of letters of administration is a nullity ab initio
- An advocate is not at liberty to depone to contentious evidentiary matters; a supplementary affidavit raising new issues contrary to court orders and sworn in breach of Order 19 rules 2 and 3 is liable to be struck out
- A deposition on information and belief whose source is not disclosed amounts to inadmissible hearsay
Court orders
#- 1.The Appeal by and on behalf of the 2nd, 3rd, 4th and 6th Appellants be and is hereby struck out
- 2.The Supplementary affidavit sworn by Dennis Kathurima on 13th October 2025 be and is hereby struck out and expunged from the record of the court
- 3.Costs of the Objection be and are hereby awarded to the named respondents
- 4.Costs of the Appeal on behalf of the 2nd, 3rd, 4th and 6th Appellants are also awarded to the named Respondents
- 5.Costs in terms of clause (iv) herein shall be borne by learned counsel for the Appellants personally
- Jurisdiction invoked
- Appellate jurisdiction over an appeal from a subordinate court; Civil Procedure Act, Cap 21 (section 2 defines an appeal as a suit)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngaruni (Suing as the legal representative of the Estate of Kirichu Ngaruini) & 5 others v Tharibu & 19 others (Environment and Land Appeal E068 of 2025) [2025] KEELC 7499 (KLR)", Case Analysis (2025). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7499/eng@2025-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.