Katama & 2 others v Rashid; Mighulo (Interested Party) (Environment and Land Case E049 of 2025) [2025] KEELC 8536 (KLR) (26 November 2025) (Ruling) Neutral citation: [2025] KEELC 8536 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT MALINDI ENVIRONMENT AND LAND CASE E049 OF 2025 EK MAKORI, J NOVEMBER 26, 2025 BETWEEN FARAJ DZOMBO KATAMA & 2 OTHERS & 2 OTHERS & 2 OTHERS ....................................................................................................... PLAINTIFF AND JUMA KIJOJA RASHID ........................................................................ DEFENDANT AND WILSON NYANGALA MIGHULO ....................................... INTERESTED PARTY RULING 1. The application dated July 21, 2025, primarily sought orders that all ex parte proceedings herein be set aside, and thereafter, the entire suit be struck out, as it was instituted against a dead person. 2. The application was supported by the attached afidavit of the applicant, Wilson Nyangala Mighulo, on the same date. 3. The court initially instructed the Deputy Registrar of this court to visit the suit property and identify who was in occupation. 4. I did not see a response from the respondent at the time I was making this ruling. 5. This ruling is based on the reasons outlined in the body of the application, the supporting afidavit by the applicant, and the report by the Deputy Registrar of this Court. 6. In her report dated October 16, 2025, the Deputy Registrar of this court determined that: “ There is currently no occupation of the suit property by any party.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8536/eng@2025-11-26 1
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7. 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. 8. The immovable property was transferred to him by the administrators of the late Juma Kijoja Rashid in 2009, pursuant to an agreement dated July 22, 2009. Since that acquisition, he has maintained peaceful occupancy until May 16, 2025, when the plaintifi unlawfully entered the property, engaged in wanton destruction, and demolished the perimeter wall, the semi-permanent residence, and the applicant's crops. 9. The lawsuit filed by the plaintifis against a deceased defendant is legally null and void, as the court recognizes that legal proceedings against a deceased person lack validity and fairness. 10. The issue I present for this court's decision is whether this suit and any related proceedings are null and void, and who should be responsible for costs. 11. According to the afidavit supporting the Originating Summons (OS), the plaintifis submitted photographs demonstrating substantial developments on the suit property, notably including permanently constructed and semi-permanently constructed residential structures. 12. But when the Deputy Registrar of this court visited the suit property, there was no such development. 13. The law regarding the commencement of legal proceedings against a deceased individual has now been conclusively established: when a lawsuit is filed against a deceased person, such a suit is inherently legally invalid because it is initiated against a non-identifiable party, and therefore, no legitimate claim exists. Refer to Geeta Bharat Shah & 4 Others v Omar Said Mwatayari & Another [2009] KECA 126 (KLR) and Mbigo Kadzo Tembo & another v Vincent Sebastian D’costa [2020] KEELC 799 (KLR). 14. The institution of this suit against a deceased individual is deemed invalid and possesses no legal efiect. As Lord Denning articulated in the renowned case of MacFoy v United Africa Co. Ltd (1961) 3 All ER 1169: “ 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.” 15. Accordingly, the proceedings undertaken thus far must be declared invalid since the OS was filed against an individual who had been deceased for thirty-two years, thereby rendering the process efiectively null. The continuation of these proceedings is fiawed, and failure to rectify this error would result in a significant miscarriage of justice. See Mbigo Kadzo Tembo & another [supra]. 16. As a result, all proceedings herein are annulled, and the OS is struck out with costs. DATED, SIGNED, AND DELIVERED ELECTRONICALLY IN MALINDI ON NOVEMBER 26, 2025. E. K. MAKORI JUDGE. In the presence of: Mr. Ndambuki for the Plaintifi https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8536/eng@2025-11-26 2
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Happy: Court Assistant In the absence of: Mr. Egunza for the Respondents. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8536/eng@2025-11-26 3
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