Maina

with the 2nd Defendant to unlawfully acquired an illegal title from the 3rd Defendant in reference to the Plainti’s suit property. 3. That the 1st Defendant/Applicant has unlawfully and forcefully and illegally entered into, encroached, trespassed and or taken possession for the suit property denying the Plainti’s family entry therein. 4. I have considered the Application alongside the submissions made by Solomon Mugo & Co. Advocates, learned counsel for the 1st Defendant/Applicant, and V M Randa Advocates, Learned Counsel for the Plainti/Respondent. Mr. Randa’s view was that the question for determination is not whether the 1st Defendant is dead but whether the property is one vesting in the estate of the 1st Defendant. I am afraid that the question is actually whether the 1st Defendant had died at the time that this suit was led and if I nd for a fact that she was deceased at the time, then I will have no choice but to strike out this suit as null and void for one cannot sue a dead man and claim that the suit is properly before Court. 5. This issue was comprehensively addressed by Mbogholi Msagha J (as he then was) in the case of Viktar Maina Ngunjiri & 4 Others v Attorney General & 6 Others, High Court at Nairobi, Civil Suit No. 21 of 2016 (2018) eKLR where he reviewed various authorities as follows :In the Indian case of C. Muttu v Bharath Match Works AIR 1964 Kant 293 the Court observed, “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 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 de and in ignorance of the death of such a person.” In yet another Indian Case of Pratap Chand Mehta v Chrisna Devi Meuta AIR 1988 Delhi 267 the Court citing another decision observed as follows, “ …. if a suit is led against a dead person then it is a nullity and we cannot join any legal representative; you cannot even join any other party, because, it is just as if no suit had been led. On the other hand, if a suit has been led against a number of persons one of whom happens to be dead when the proceedings were instituted, then the proceedings are not null and void but the Court has to strike out the name of the party who has been wrongly joined. If the case has been instituted against a dead person and that person happened to be the only person then the proceedings are a nullity and even Order 1 Rule 10 or Order 6 Rule 17 cannot be availed of to bring about amendment.” 6. Having reviewed the above authorities, he found that the suit as against the 7th Defendant, who was dead when the case was led, was null and void ab initio. 7. The Court of Appeal has also had occasion to address the issue of a suit led against a dead person in the case of Geeta Bharat Shah & 4 Others v Omar Said Mwatayari & Another, Court of Appeal at Mombasa, Civil Appeal No. 46 of 2008, (2009) eKLR. In that case, a suit was led against two persons one of whom was already dead when the case was led. Judgment was entered against the deceased. An Application to set aside the judgment was disallowed and the Applicants appealed to the Court of https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18685/eng@2025-03-06 2

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Appeal. The Court of Appeal held that the judgment could not be sustained as it was entered against a person who was already dead. The Court stated as follows:“ In the result, as Bharatkumar Nathalal Shah was already dead by the time the suit was led, we hold the view that the suit was a nullity and Mr. Oddiaga, is with respect right in conceding the appeal in respect of him on that score. We see no merit in directing that he be allowed to le defence as he is not there to do so and the administrators to his estate cannot in law take over the matter as it was led after he was already dead.” 8. I am bound by the above decision of the Court of Appeal. I have no option but to nd that the suit against the 1st Defendant was a nullity ab initio and I hereby strike it out. I will not make any orders as to the costs of the suit but the Applicants will have the costs of this Application. Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 6TH DAY OF MARCH 2025 VIA MICROSOFT TEAMS. ……………………… MOGENI J JUDGE In the presence of: Mr. Wanjohi for the Plainti Mr. Muturi holding Ms. Wahito for the 1st Defendant 2nd and 3rd Defendants – Absent Mr. Melita - Court Assistant …………………… MOGENI J JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18685/eng@2025-03-06 3

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