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ELCPartially AllowedNot stated in the judgment· [2026] KEELC 5334 (KLR)
Thuku (Suing as the Legal Representative of the Estate of James Wachira Muthae - Deceased) v Wachira & 8 others (Environment and Land Case E041 of 2025) [2026] KEELC 5334 (KLR)
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·~5 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#The Plaintiff filed a Notice of Motion dated 28th April 2026 seeking leave to amend the Plaint to remove the 1st, 3rd and 9th Defendants from the suit. Supporting affidavit of David Gatonye, Advocate, deposed that upon taking over conduct of the matter on 25th November 2025, he discovered from the Defendants' list of documents that the 1st, 3rd and 9th Defendants had died before the suit was instituted on 22nd October 2025, rendering the suits against them void ab initio. The 2nd, 4th and 5th Defendants opposed, contending that a suit against a deceased person is a nullity incapable of being cured by amendment, that the proposed amendment would sanitise an incurably defective suit, and that the application and suit should be dismissed with costs. The court considered Order 8 Rule 3 of the Civil Procedure Rules and the test in Central Kenya Ltd v Trust Bank Ltd that amendments be freely allowed where necessary for the just determination of the controversy and absent compensable prejudice. It then addressed the nullity argument through Order 24 Rule 4 and the persuasive authority in Viktar Maina Ngunjiri, which adopted Indian decisions holding that where a suit is brought against multiple persons, some already deceased at institution, the proceedings are not null and void where the cause of action subsists against other defendants; the court must simply strike out the names of the wrongly joined deceased parties. The court accordingly struck out the names of the 1st, 3rd and 9th Defendants without requiring amendment of the Plaint, leaving liberty for further amendment if demonstrated, and ordered costs in the cause.
Key legal issues
#01
Amendment of pleadings to remove deceased defendants
Holding
Amendment under Order 8 Rule 3 was unnecessary; the proper course is striking out the names of the deceased defendants who were wrongly joined
Reasoning
The court accepted that amendments should be freely allowed where necessary for just determination, citing Central Kenya Ltd v Trust Bank Ltd. However, following persuasive Indian authority adopted in Viktar Maina Ngunjiri, where a suit filed against multiple persons includes some already deceased at institution, the proceedings are not null and void where the cause of action subsists against others. The remedy is striking out the wrongly joined party's name, not amendment.
p. 4
Legal principles established
#- Where a suit is filed against several persons, some of whom were already deceased at institution, but the cause of action subsists against other defendants, the proceedings are not a nullity; the court strikes out the names of the wrongly joined deceased parties rather than treating the suit as void
Court orders
#- 1.Striking out the names of the 1st, 3rd and 9th Defendants from the suit, as the party wrongly joined
- 2.Costs in the cause
- Jurisdiction invoked
- Order 8 Rule 3 and Order 24 Rule 4 of the Civil Procedure Rules (amendment of pleadings and suits against deceased parties)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thuku (Suing as the Legal Representative of the Estate of James Wachira Muthae - Deceased) v Wachira & 8 others (Environment and Land Case E041 of 2025) [2026] KEELC 5334 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5334/eng@2026-08-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.