Kimaru v County Government of Kilifi & 4 others (Environment and Land Case E032 of 2023) [2026] KEELC 2951 (KLR)

The court accepted the applicants' showing that the 3rd defendant died before the suit was filed. Service by newspaper advertisement was ineffectual because a deceased person cannot see an advertisement, however prominently displayed. Relying on Geeta Bharat Shah and Naikuni (quoting C. Muttu), the court held a suit against a dead person is a nullity from inception, and the ex parte judgment affecting her registration could not stand. However, the court did not go on to set the judgment aside because joinder was declined.

Applying the Muruatetu criteria, the court found the applicants had not demonstrated the implications of non-joinder, since the land had already been subdivided, transferred and was the subject of other proceedings. The appropriate remedy was for the administrators to institute their own action asserting the nullity of the proceedings and claiming ownership, rather than joining as non-active interested parties.

Although the applicants had sought costs of the application, the court, having dismissed the application, made no order as to costs, taking a neutral position on costs between the parties.