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)

3. He deposed that upon taking over the conduct of this suit on behalf of the Plaintifi on 25th November, 2025, he discovered that the Advocates for the 2nd, 4th and 5th Defendants had filed, inter alia, a list of documents comprising copies of Death Certificates in respect of the 1st, 3rd and 9th Defendants. Upon further scrutiny, he found that the 1st, 3rd and 9th Defendants had died before this suit was instituted in 2025, which meant that the suits against them were void ab initio. 4. He informed the Plaintifi of the discovery and advised that an amendment to the Plaint was necessary to efiect the removal of the Defendants from the suit. The Plaintifi instructed Counsel to file the necessary application, which he has now done, seeking leave of the Honourable Court to amend the Plaint to efiect the removal of the suits against the deceased Defendants. 5. He added that no prejudice whatsoever shall be caused to the Plaintifi or any other person when the application subject hereof is allowed. The 2nd, 4th and 5th Defendants replying afidavit 6. The 5th Defendant/Respondent herein swore an afidavit in response to the instant application on 6 May 2026, on his own behalf and on behalf of the 2nd and 4th Defendant/Respondents herein. 7. He stated that the suit herein was instituted against the 1st defendant, who had already passed away on 28th November 2011; the 3rd defendant, who had already passed away on 28th September 2017; and the 9th defendant, who had already passed away on 2nd December 2020, all before the filing of this suit. 8. That the said fact renders the entire suit incompetent, fatally defective and a nullity ab initio, as advised by their counsel on record, and that it is a well-established principle of law that a suit filed against a deceased person is void and incapable of being cured by amendment. 9. That the plaintifi's/applicant's attempt to amend the plaint to substitute or introduce a proper party is legally untenable, as there is no valid suit capable of being amended. 10. They contend that allowing the proposed amendment would amount to sanitising an incurably defective suit and would cause grave prejudice to the respondents, and that the application and the suit be dismissed with costs to themselves. 11. Parties filed written submissions, which the Court has duly read and considered. Analysis and Determination 12. The Plaintifi’s Counsel averred that he discovered that the 1st, 3rd and 9th Defendants had already died before the institution of this suit on the 22nd of October 2025, and now wishes to amend the Plaint to remove them as Defendants. 13. Order 8 Rule 3 of the Civil Procedure Rules provides for the amendment of pleadings with leave of the court, which is what the Applicants herein have sought, and provides that: “ Subject to Order 1, rules 9 and 10, Order 24, rules 3, 4, 5 and 6 and the following provisions of this rule, the court may at any stage of the proceedings, on such terms as to costs or otherwise as may be just and in such manner as it may direct, allow any party to amend his pleadings.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5334/eng@2026-08-12 2

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14. In Central Kenya Ltd v Trust Bank Ltd & 5 others [2000] eKLR, the Court held that, “ ……The overriding consideration in application for such leave is whether the amendments are necessary for the just determination of the controversy between the parties. Likewise, mere delay is not a ground for declining to grant leave. It must be such delay as is likely to prejudice the opposite party beyond monetary compensation in costs……Hence the guiding principle in applications for leave to amend is that all amendments should be freely allowed and at any stage of the proceedings, provided that the amendment or joinder as the case may be, will not result in prejudice or injustice to the other party which cannot properly be compensated for in costs (see, Beoco Ltd v. Alfa Laval Co. Ltd [1994]4 ALL ER. 464)……….” 15. However, the 2nd, 4th and 5th Defendants/Respondents herein contend that the suit is a nullity ab initio because it was filed against deceased defendants. Order 24 Rule 4 of the Civil Procedure Rules provides that: “ 4. (1) 16. Where one of two or more defendants dies and the cause of action does not survive or continue against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the cause of action survives or continues, the court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. (2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. (3) Where within one year no application is made under subrule (1), the suit shall abate as against the deceased defendant.” In Viktar Maina Ngunjiri & 4 others v Attorney General & 6 others [2018] eKLR, the High Court (Mbogholi Msagha J), citing Indian judicial pronouncements, stated as follows: “ In the Indian case of C. Muttu vs 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 fide and in ignorance of the death of such a person.” In yet another Indian Case of Pratap Chand Mehta vs Chrisna Devi Meuta AIR 1988 Delhi 267, the court, citing another decision, observed as follows, “ …..if a suit is filed 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 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5334/eng@2026-08-12 3

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suit had been filed. On the other hand, if a suit has been filed 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.” 17. As observed in the persuasive judicial authority cited above, if a suit is filed against a number of deceased persons, some of whom were already deceased before the suit was instituted, but the cause of action subsists against some Defendants, the proceedings are not null and void. The Court must strike out the name of the party who has been wrongly joined; therefore, there is no need to amend the Plaint. The Court simply issues an order striking out the names of the 1st, 3rd and 9th Defendants named herein, as it hereby does, unless the Plaintifi demonstrates any need for further amendments. 18. Costs in the cause DATED, SIGNED, AND DELIVERED VIRTUALLY AT NYERI ON THIS 12TH DAY OF AUGUST 2026. E. K. MAKORI JUDGE In the Presence of: Mr Gatonye for the Applicant Mr Kibicho for the Respondents Denis - Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5334/eng@2026-08-12 4

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