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ELCAllowedNot stated in the extract

Katama & 2 others v Rashid; Mighulo (Interested Party) (Environment and Land Case E049 of 2025) [2025] KEELC 8536 (KLR)

Environment and Land Court
26 November 2025
EME. K. Makori
698 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court struck out a land suit filed against someone who died in 1993, ruling it was legally void from the start.

What this practically means

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Executive summary

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This was a ruling on an application dated July 21, 2025 by Wilson Nyangala Mighulo seeking to set aside ex parte proceedings and strike out an Originating Summons on the ground that it was instituted against a dead person. The suit named Juma Kijoja Rashid as defendant, a person who died on May 15, 1993. The court had earlier directed the Deputy Registrar to visit the suit property and identify the occupants; her report dated October 16, 2025 found no current occupation of the property, contradicting the plaintiffs' affidavit evidence of permanent and semi-permanent structures on the land. The applicant's supporting affidavit further deponed that the property had been transferred to him in 2009 by the administrators of the late Juma Kijoja Rashid under an agreement of July 22, 2009, and that on May 16, 2025 the plaintiff unlawfully entered the property, destroyed the perimeter wall, a semi-permanent residence and crops. Framing the sole issue as whether the suit and related proceedings were null and void and who should bear costs, the court, citing Geeta Bharat Shah v Omar Said Mwatayari and Mbigo Kadzo Tembo v Vincent Sebastian D'costa, held that a suit against a deceased person is inherently invalid as it is directed at a non-identifiable party. Adopting Lord Denning's dictum in MacFoy v United Africa Co. Ltd, the court found the proceedings a nullity requiring no formal setting aside. Declaring that continuing the suit would occasion a miscarriage of justice, the court annulled all proceedings and struck out the Originating Summons with costs. The ruling was delivered electronically in Malindi on November 26, 2025 by E. K. Makori, Judge.

Questions the Court framed

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

  1. 1.whether this suit and any related proceedings are null and void, and who should be responsible for costs

Key legal issues

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01

Validity of a suit instituted against a deceased defendant

Holding

The suit and all proceedings are null and void because the defendant died in 1993, long before the suit was filed.

Reasoning

The court held that proceedings against a person dead for thirty-two years are initiated against a non-identifiable party and possess no legal effect. Relying on Geeta Bharat Shah and Mbigo Kadzo Tembo and the dictum in MacFoy v United Africa Co. Ltd, it found continuation of the suit would be a miscarriage of justice.

p. 2

Legal principles established

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  • A suit filed against a deceased person is a legal nullity and no order is needed to set it aside.
  • An act that is void is a nullity, incurably bad, and every proceeding founded on it collapses.

Court orders

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  1. 1.All proceedings herein are annulled
  2. 2.The Originating Summons is struck out with costs

The bench

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

EM
majority

Wrote the judgment

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over an Originating Summons concerning immovable property

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.

In light of the legal principles established in cases such as Geeta Bharat Shah & 4 Others v Omar Said Mwatayari, the court finds that filing a suit against a deceased person, as in this case against Juma Kijoja Rashid, who died on May 15, 1993, renders the proceedings legally invalid and null.
p. 2suit against a deceased person
As a result, all proceedings herein are annulled, and the OS is struck out with costs.
p. 2final orders

Issues in the judgment

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minor

The judgment refers to the applicant having acquired the property from administrators of the deceased in 2009, but it is unclear from the extract whether this is the respondent's or plaintiff's position; the narrative shifts from the applicant's affidavit to third-party occupation.

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, "Katama & 2 others v Rashid; Mighulo (Interested Party) (Environment and Land Case E049 of 2025) [2025] KEELC 8536 (KLR)", Case Analysis (2025). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8536/eng@2025-11-26

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