Arthur v Awale & another (Environment and Land Appeal E007 of 2024) [2025] KEELC 7693 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out an entire appeal because it was filed against a person who had already died before filing.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether or not the appeal against the 1st Respondent is competent
- 2.If the answer to the 1) above is in the negative whether appeal lies against the 2nd respondent
- 3.Whether the learned trial magistrate erred in fact and in law by awarding the appellant a global sum of the purchase price without interests or damages and failing to award compensation
- 4.Whether the trial court was within the Law and judicial discretion by Awarding Costs and Interest to the Respondents, despite the Appellant's partial success
- 5.Costs of this appeal
Key legal issues
#Competency of an appeal filed against a deceased person without substitution
The appeal against the 1st respondent, who died in December 2023 before the appeal was filed on 21/3/2024, is null and void; Order 24 CPR does not assist because the death predated the appeal.
The court held that an appeal is a suit under section 2 of the Civil Procedure Act. Where the defendant dies before the suit is filed, the suit is against a dead person and a nullity from inception, citing C. Muttu v Bharath Match Works as adopted in Viktar Maina Ngunjiri. Substitution under Order 24 applies only where death occurs during the pendency of proceedings, which was not this case.
Whether any appeal lies against the 2nd respondent
No appeal could lie against the 2nd respondent regarding the refund, as the refund order was made solely against the 1st respondent.
Order 30(c) of the trial judgment directed only the 1st plaintiff to refund the purchase price. Although the money was deposited by the 2nd respondent with counsel's office, the court held the decretal obligation remained that of the 1st respondent regardless of who paid on her behalf, leaving no live appeal against the 2nd respondent.
Claims for interest, damages and compensation for improvements
Not determined, as these grounds were dependent on issues 1 and 2 which failed.
The court expressly made issues 3 and 4 dependent on the competency findings. Having found the appeal against the 1st respondent a nullity and no appeal lying against the 2nd respondent, there was no basis to entertain the substantive grounds on interest, compensation for improvements or costs.
Legal principles established
#- A suit filed against a person already deceased is a nullity from inception, and Order 24 of the Civil Procedure Rules cannot cure a suit commenced against a party who died before filing.
- An appeal against a deceased respondent against whom no decretal obligation lies cannot shift liability to a co-respondent who merely deposited money on her behalf.
Court orders
#- 1.The appeal is struck out in its entirety
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Bondo Senior Principal Magistrates' Court
- Environment and Land Case E014 of 2020
- Jurisdiction invoked
- First appellate jurisdiction over subordinate court under Article 165 and the Civil Procedure Act
Relief refused
#Variation of judgment to award interest on the purchase price
The appeal against the deceased 1st respondent was a nullity and no appeal lay against the 2nd respondent
Setting aside the order on 70% costs and substitution with each party bearing its own costs
The issue collapsed with the findings on competency
Costs
No costs order made in the judgment; the appeal was struck out in its entirety without an express costs direction.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is therefore not in dispute that the 1st respondent is deceased.
Would the provisions of Order 24 of the Civil Procedure Rules be helpful under the circumstances? In my view no because the deceased did not die during the pendency of the appeal.
It is the finding of this court that no appeal can lie against the 2nd Respondent with regard to the refund of Kshs.300,000/-
The upshot of the foregoing is that the appeal is struck out in its entirety.
Issues in the judgment
#The judgment does not state the name of the appellant or the respondents, identifying them only by role
The judgment makes no express order on costs of the appeal despite listing it as an issue for determination
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Arthur v Awale & another (Environment and Land Appeal E007 of 2024) [2025] KEELC 7693 (KLR)", Case Analysis (2025). Environment and Land Case E014 of 2020 (Bondo SPMC), Appeal. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7693/eng@2025-11-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.