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ELCOtherThika CM Misc Civil Application No. E090 of 2021 (Appeal thereto)· [2025] KEELC 8409 (KLR)

Mugi v Karoki (Civil Appeal E016 of 2025) [2025] KEELC 8409 (KLR)

High Court of Kenya
3 December 2025
MOMOGENI
795 words in judgment
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The bottom line

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Kenya's High Court threw out a stay application filed against a respondent who had died before the ruling being appealed, warning lawyers against concealing deaths.

What this practically means

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Executive summary

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This is a ruling of the High Court at Thika (Mogeni J) delivered virtually on 3 December 2025 on a Notice of Motion dated 28/02/2025 brought under Sections 1A, 1B and 3A of the Civil Procedure Act, Order 42 Rule 6 of the Civil Procedure Rules and Articles 50 and 159(2)(d) of the Constitution. The Applicant, who was the Appellant in an appeal against the ruling of S. Atambo in Thika CM Misc Civil Application No. E090 of 2021, sought stay of execution of orders committing her to six months' civil jail for contempt and directing her immediate eviction from Thika Municipality Block 10/325. Counsel for the Respondent opposed the application on the ground that the Respondent had died. In supplementary submissions the Applicant pointed out that the Respondent's death certificate, disclosed in a List of Documents dated 22/07/2025, showed death on 16/04/2024 - before the lower court ruling. The Applicant then sought to withdraw the application. The court observed that a ruling delivered against a person already dead would be null and void ab initio, criticised counsel for concealing the death, and marked the application as withdrawn as an exercise in futility. No costs order was made. The substantive appeal remains undetermined by this ruling; all authorities cited were relied on by the Applicant's counsel and none was adopted by the court.

Key legal issues

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01

Effect of the Respondent's death on the application

Holding

The application, having been filed against a deceased person whose death predated the lower court ruling, was an exercise in futility and was marked withdrawn

Reasoning

Counsel for the Respondent's List of Documents dated 22/07/2025 attached a death certificate showing the Respondent died on 16/04/2024, before the lower court's ruling of 28/01/2025 committing the Applicant to civil jail. The court reasoned that a ruling made against a person already dead is null and void ab initio, so a stay pending appeal served no purpose.

p. 2

Legal principles established

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  • Where a party to proceedings has died before the ruling was delivered, any order made against them is a nullity and applications arising from it are futile

Court orders

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  1. 1.Application marked as withdrawn for having been filed against a deceased person
On appeal from
Chief Magistrate's Court, Thika
Thika CM Misc Civil Application No. E090 of 2021
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 42 Rule 6 of the Civil Procedure Rules; Articles 50 and 159(2)(d) of the Constitution

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, "Mugi v Karoki (Civil Appeal E016 of 2025) [2025] KEELC 8409 (KLR)", Case Analysis (2025). Thika CM Misc Civil Application No. E090 of 2021 (Appeal thereto). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8409/eng@2025-12-03

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