Tanui & 3 others v Mogen & 14 others; Kipngetich (Applicant) (Environment and Land Case 58 of 2022) [2025] KEELC 8029 (KLR)

JOSEPH KIPLAGAT KANGOGO ................................................ 13TH DEFENDANT MOHAMMED TOROITICH ........................................................ 14TH DEFENDANT LUKA KIPRUTO KWAMBAI ...................................................... 15TH DEFENDANT AND MESHACK KIPLAGAT KIPNGETICH ................................................ APPLICANT RULING 1. Before this court is a notice of motion application dated 7th October, 2025 brought under Order 24 Rule 3, 7(2), Order 51 of the Civil Procedure Rules and Section 1A, 1B and 3 A of the Civil Procedure Act seeking orders for revival of the suit and substitution of the 1st defendant with Meshack Kiplagat Kipngetich. 2. The application is premised on the grounds on its face and supporting afidavit of Meshack Kiplagat Kipngetich sworn on 7th October, 2025. He deposes that following the death of the 1st defendant in 2014, the suit against him abated but the cause of action survived; that he obtained letters of administration ad litem in Iten High Court Family Miscellaneous No. 004 of 2025 on 30th June, 2025 for purposes of defending the suit in place of the 1st defendant. 3. Although the application is not opposed, I will proceed to consider it on merit. 4. The applicant has sought for revival of the suit and subsitution of the 1st defendant with the applicant. The 1st defendant died on 22nd July, 2014 before this suit was filed herein on 20th January, 2021. From the death certificate annexed and marked as MKK-1, indeed the 1st defendant died on 22nd July, 2014. 5. It is trite Law that a dead person cannot be sued and if sued, the suit against the deceased person is invalid and a nullity from inception. In the case of Naikuni v Naikuni & 7 others; Manyuele (Applicant) (Environment & Land Case 9 of 2023) [2025], Gacheru J. faced with similar circumstances held; “ The Applicant has sought for the striking out of the suit herein against the 5th Defendant Seenka Ole Manyuele, who died on 4th January 2020, before the suit was filed herein on 9th November 2023. Indeed, from the annexture MPM1, the 5th Defendant herein Seenka Ole Manyuele, died on 4th January 2020, long before the suit was filed on 9th November 2023. It is trite that a dead person cannot be sued, and technically, a suit filed against a deceased person is invalid and a nullity from inception. This court was referred to the case of 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), which quoted with approval the Indian case of C. Muttu v. Bharath Match Works AIR 1964 Kant 293, where the court observed as follows; “If he (defendant) dies before the suit and a suit is brought against him in the name in which he carried on business, the suit is against a dead man and it is a nullity from its inception. The suit being a nullity, the writ of summons issued in the suit by whomsoever accepted is also a nullity. Similarly, an order made in the suit allowing amendment of plaint by substituting the legal representative of https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8029/eng@2025-11-19 2

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the deceased as the defendant and allowing the suit to proceed against him is also a nullity. It is immaterial that the suit was brought bona fide and in ignorance of the death of such a person.” It is evident that the 5th defendant herein was not alive when the suit was filed against him. Therefore, the suit against him is a nullity from inception, and a nullity cannot be rectified through amendments or substitution. The above position was submitted by the Applicant who relied on the case of Benjamin Leonard Mc foy v. United Africa Company Limited [1961] All ER 1169, wherein the court held; “If an Act is void, then it is in Law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.” The suit against the 5th Defendant being a nullity, then it same is bad in law, and is automatically null and void, and there is nothing that can be done to salvage it for now. There being no doubt that the 5th Defendant was dead at the time of filing this suit, the said deceased Defendant cannot be substituted to breathe life into the suit………………………………………. On whether the 5th Defendant who is deceased can be substituted, is trite that technically, the case herein was non-suited ab initio, as a dead person cannot be sued. Courts have dealt with this issue of whether or not such suit can be cured by a substitution, and have severally arrived at a verdict, that it cannot……...’’ 6. Similarly in this case, by the time the suit was filed in 2021, the 1st defendant was deceased. The suit is therefore a nullity against the 1st defendant and subsitution cannot breathe life into a suit which is a nullity. 7. Consequently, I find the application devoid of merit and dismiss it with no orders as to costs as the application was not defended. 8. Orders accordingly. DATED, SIGNED AND DELIVERED AT ITEN THIS 19TH DAY OF NOVEMBER, 2025. L. N. WAITHAKA JUDGE Ruling delivered virtually in the presence of;Ms. Kemboi for the 1st Defendant/Applicant N/A for the Plaintifi/Respondents N/A for the 2-5th Defendants Court Asst.: Christine https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8029/eng@2025-11-19 3

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