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ELCOtherThika CM Misc Civil Application No. E090 of 2021 (Appeal thereto)

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dead would be null and void ab initio, criticised counsel for concealing the death, and marked the application as withdrawn as an exercise in futility.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.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether stay of execution of the Ruling and orders of 28 January 2025 committing the Appellant to civil jail and ordering eviction should be granted pending appeal
  2. 2.What is the effect of the Respondent's death on the application and on the lower court ruling

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

The bench

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One judgment of the whole court — no separate or dissenting opinions.

MO
majority

Wrote the judgment

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

Relief refused

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Stay of execution of the Ruling and orders of 28/01/2025 pending appeal

The Respondent had died on 16/04/2024 before the ruling was delivered, rendering the application futile; the Applicant sought to withdraw it

p. 2

Costs

No costs order made; the prayer for costs lapsed with the withdrawal

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

If the Respondent had died on 16/04/2024 then the Ruling in the lower Court is null and void ab initio.
p. 2Effect of death on rulings made thereafter
I mark this Application as withdrawn for having been filed against a deceased person infact it was an exercise in futility.
p. 2Final order - withdrawal of application
It is unfortunate that Advocates who are oficers of this Honorable Court choose to play games with people's lives.
p. 2Professional conduct of advocates

Issues in the judgment

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minor

The Ruling is described as delivered on 28th January 2025 and 'issued on 28th January 2025', but elsewhere as orders 'issued by the Court on 27/01/2023' which the Respondent was to comply with; the judgment also refers to the Applicant/Appellant interchangeably with the Respondent in places (e.g. 'the Respondent (Appellant herein)')

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.