https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3947

GMN (Suing as the Guardian and/or Manager of the subject GNM) v Muthee (Sued as the Administrator of the Estate of Daniel Kagundu - Deceased) & another (Environment and Land Miscellaneous Case E001 of 2026) [2026] KEELC 3947 (KLR) (30 June 2026) (Ruling) Neutral citation: [2026] KEELC 3947 (KLR) Republic of Kenya In the Environment and Land Court at Nakuru Environment and Land Miscellaneous Case E001 of 2026 MAO Odeny, J June 30, 2026 Between GMN (Suing as the Guardian and/or Manager of the subject GNM) Applicant and Linus Njagi Muthee (Sued as the Administrator of the Estate of Daniel Kagundu - Deceased) 1st Respondent Peter Muhika Kamau 2nd Respondent Ruling 1.This ruling is in respect of the Notice of Preliminary Objection dated 16th February, 2026, by the 1st Respondent on the following grounds: 1.That the Amended Notice of Motion application dated 12th February 2026 is fundamentally incompetent, misconceived, hopeless, and an abuse of the due process of this Honourable Court. 2.That the purported amendment as delineated in the Applicant's Amended Notice of Motion is predicated upon a void and non-existent juridical substratum and is therefore legally inefficacious. 3.That the Amended Application is profusely unsustainable as the original application was supported by an affidavit sworn by GNM, who had been judicially declared in HCFMISC/E022/2025 to lack the requisite mental capacity, and was therefore legally incapable of swearing a competent affidavit or instituting proceedings. 4.That the purported amendment, seeking to substitute the deponent with GMN2, is legally ineffectual and offends the maxim ex nihilo nihil fit—out of nothing, nothing comes, since the original application being a legal nullity cannot be resuscitated or validated by mere procedural substitution. 5.That the amended application further egregiously contravenes the doctrine of ex nihilo nihil fit (“out of nothing, nothing comes”) as_ the original application dated 13'° January 2026 had been nullity ab initio, for being instituted against the late Daniel Kagundu, a deceased person lacking juristic personality. 6.That this Honourable Court lacks jurisdiction to entertain or determine an application whose legal foundation was non-existent, jurisdiction being the lifeblood of adjudication and incapable of being conferred by amendment, acquiescence, or ingenuity, it must down its tools, this is a suitable case for this court to down its tools. 7.That the Amended Notice of Motion is therefore legally sterile and ought to be struck out in limine with costs. 2.The Preliminary Objection was canvassed by way of written submissions. 1st Respondent’s Submissions 3.Counsel for the 1st Respondent filed his submissions dated 2nd March, 2026 and identified the following issues for determination:a.Whether the Preliminary Objection dated 16th February, 2026 is substantial in lawb.Whether the Notice of Motion application dated 14th January, 2026 filed against a deceased person and supported by a mentally incompetent deponent is a nullity ab initioc.Whether the doctrine of ex nihilo nihil fit bars the Applicant from “curing” the non-existent legal substratum of the application dated 14th January, 2026, through subsequent amendment. 4.On the first issue, counsel cited the case of Mukisa Biscuit Manufacturers Ltd V West End Distributors Ltd (1969) E.A 696 and Supreme Court case of Aviation & Allied Workers Union Kenya V Kenya Airways Ltd & 3 Others [2015] eKLR, and submitted that the Preliminary Objection raised a pure point of law on the doctrine of ex nihilo nihil fit (from nothing, nothing comes), hence the application dated 12th January, 2026 collapse as an amendment cannot cure or resurrect a void application. 5.On the second issue, counsel submitted that a deceased person lacked juristic personality and thus cannot be a party to proceedings, and relied on the case of Kamau V Mbugua (Sued as the Administrator of the Estate of the Late Mbugua Kariuki (Deceased) & 22 Others (Environment and Land Case E015 of 2025) [2025] KEELC 7052 (KLR). 6.It was counsel’s submission that the initial application dated 14th January, 2026, had been filed against the 1st Respondent who has since passed on. Further, the application was supported by an affidavit sworn and signed by the Applicant who had been judicially declared to lack the mental capacity to participate in the proceedings; hence, the application was void ab initio and incapable of generating any legal consequences. He relied on the case of MacFoy V United Africa Co. Ltd [1961] 3 ALL ER 1169. 7.Mr. Karanja finally submitted that the subsequent application dated 12th February, 2026 was a legal impossibility and cited the case of Manyange V Mokoro (Civil Appeal E066 of 2022) [2024] KEHC 1128 (KLR). Further, the Applicant’s attempt to substitute the 1st Respondent and the Applicant with Grace Muthoni Nganga through an amendment amounted to an impermissible attempt to place a superstructure on a non-existent foundation. Counsel relied on the case of Geeta Bharat Shah V 4 Others V Omar Said Mwatayari & Another [2009] eKLR, and urged the court to strike out the application with costs. Applicant’s Submissions 8.Counsel for the Applicant in addition to filing its submissions dated 10th February, 2026 filed further submissions dated 14th April, 2026 on the preliminary objection. 9.It was counsel’s submission that a preliminary objection must be raised on a pure point of law and cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. Further, that in this case the preliminary objection revolved around a single issue of misjoinder of parties and relied on Order 1 Rule 9 of the Civil Procedure Rules and the case of Kuria & 3 others V Muriithi & another (Environment and Land Case E034 of 2025) [2026] KEELC 1941 (KLR). 10.Mr. Ouma submitted that misjoinder of parties is curable by way of amendment and cannot therefore be fully disposed of by way of preliminary objection, as the Applicant was granted leave on the 12th February, 2026 to amend the application upon parties agreeing by consent to have the amendments effected. 11.Counsel further submitted that both the Applicant and the Respondent noted that the mistake was made by the trial court, which failed to properly describe parties in the final judgment, and urged the court to dismiss the preliminary objection with costs to the Applicant. Analysis And Determination 12.The main issue for determination is whether the Preliminary Objection has merit on the ground of the description of the parties mentioned in the pleadings. Does the preliminary objection by the respondent amount to a pure point of law? 13.In the case of Mukisa Biscuits Manufacturing Co. Ltd…Vs…West End Distributors Ltd (1969) EA 696, the court held as follows:“A Preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the Court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration… a Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion.” 14.From the above, it is not in doubt that a preliminary objection ought to raise a pure point of law, argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any facts have to be ascertained from elsewhere or where the court is called upon to exercise judicial discretion. 15.The Applicant has admitted that they had to amend the application due to the anomalies pointed out by counsel for the1st Respondent. If an application is a nullity from the word go, then any amendment cannot cure the anomaly. This is not a case of misjoinder but a case where a party has been adjudged by the court vide HCFMISC/E022/2025, to lack the requisite mental capacity to institute a suit, in his name. The Applicant filed the application knowing that he did not have the requite capacity to institute the suit. 16.The second anomaly, which the Applicant’s counsel acknowledged, is that the Applicant had sued a deceased person and not the legal representative. It is trite law that proceedings against a deceased person are a nullity ab initio and cannot be cured by substitution or amendment as was held in the cases of Kamau V Mbugua (Sued as the Administrator of the Estate of the Late Mbugua Kariuki (Deceased) & 22 Others (Environment and Land Case E015 of 2025) [2025] KEELC 7052 (KLR), Manyange V Mokoro (Civil Appeal E066 of 2022) [2024] KEHC 1128 (KLR), and Geeta Bharat Shah V 4 Others V Omar Said Mwatayari & Another [2009] eKLR, (supra). 17.The Applicant’s application is a non-starter and an amendment cannot cure the grave anomaly. The upshot is that the application is struck out with costs to the 1st Respondent. DATED, SIGNED AND DELIVERED AT NAKURU THIS 30TH DAY OF JUNE 2026.M. A. ODENYJUDGE