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ELCPartially AllowedNot stated in the judgment as provided· [2026] KEELC 1428 (KLR)

Ouko & another v Waithaka (Environment and Land Case E083 of 2023) [2026] KEELC 1428 (KLR)

Environment and Land Court
12 March 2026
MCMbogo C.G.
1,031 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 confirmed you cannot sue someone who died before the case was filed — such a suit is a nullity.

What this practically means

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Executive summary

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The defendant/applicant, through Margaret Nyambara Waithaka, administrator of the estate of Martin Francis Thuku Waithaka (deceased), filed a notice of motion dated 9th December 2025 under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 2 Rule 15 of the Civil Procedure Rules seeking that the suit filed against the defendant be struck out with costs. She deposed that the defendant died on 26th April 2018, that she obtained letters of administration in Milimani Succession Cause No. 1325 of 2018 (confirmed on 16th September 2020), and that the plaintiffs knew of the death, having been involved in HCCC E148 of 2021, with the 2nd plaintiff testifying to that fact on 26th May 2023. An affidavit of service sworn on 15th August 2023 claiming service on the deceased was therefore false. A death certificate and a letter dated 15th September 2025 from counsel notifying the plaintiffs' counsel of the death were exhibited; the plaintiffs took no remedial steps and filed no response. Relying on Section 79 of the Law of Succession Act and authorities including Julian Adoyo Ongunga v Francis Kiberenge Abano and Naikuni v Naikuni, the court held that a suit against a dead person is a nullity from inception, irrespective of bona fide ignorance. The plaint dated 25th January 2023 was struck out, with no order as to costs because the defendant had no proper legal standing in the suit.

Key legal issues

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01

Whether a suit against a deceased defendant is a nullity

Holding

Yes - the suit against a defendant who died before filing is a nullity and the plaint must be struck out

Reasoning

The defendant died on 26th April 2018, evidenced by a death certificate, yet the plaint was filed on 25th January 2023 and an affidavit of service sworn on 15th August 2023 alleged service on him. The court relied on authority that suing a dead person renders proceedings a nullity from inception, immaterial whether filed bona fide in ignorance of death. Counsel had also been notified by letter of the death and took no remedial step.

p. 3

Legal principles established

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  • A suit filed against a dead person is invalid and a nullity from inception

Court orders

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  1. 1.The plaint dated 25th January, 2023 is struck out
  2. 2.No order as to costs since the defendant has no proper legal standing in the suit

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure RulesOrder 2 Rule 15(1)(b) and (d)
  • Law of Succession Act Cap 160Section 79

Cases cited (4)

  • Julian Adoyo Ongunga v Francis Kiberenge Abano
    Civil Appeal No. 119 of 2015
  • Naikuni v Naikuni & 7 others; Manyuele (Applicant)
    (Environment & Land Case 9 of 2023) [2025] KEELC 3064 (KLR)
  • Manyange (Deceased) v TG (Minor suing through her mother and next friend WMG)
    (Civil Appeal E005 of 2022) [2024] KEHC 1083 (KLR) (7 February 2024) (Ruling)
  • C. Muttu v. Bharath Match Works
    AIR 1964 Kant 293
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 2 Rule 15(1)(b) and (d) of the Civil Procedure Rules

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, "Ouko & another v Waithaka (Environment and Land Case E083 of 2023) [2026] KEELC 1428 (KLR)", Case Analysis (2026). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1428/eng@2026-03-12

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