https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3194

Nguthi & 28 others v Mungai & 13 others (Environment and Land Case Civil Suit E001 of 2025) [2026] KEELC 3194 (KLR) (26 May 2026) (Ruling) Neutral citation: [2026] KEELC 3194 (KLR) Republic of Kenya In the Environment and Land Court at Machakos Environment and Land Case Civil Suit E001 of 2025 AY Koross, J May 26, 2026 [Formerly Nairobi ELC Case No 120 Of 2013 (OS)] Between Jackson Muiruri Nguthi & 28 others & 28 others & 28 others & 28 others Plaintiff and Moses Ngungu Mungai 1st Defendant Simon Ndunda Metho 2nd Defendant Kasiva Nzomo Ngwalo 3rd Defendant Mita Nzomo Ngwalo 4th Defendant and Gidraph Ngugi Gitundu & Danson Mworia Njihia (Suing on Behalf of Kihururu Self Help Group) Interested Party and Fridah Kalekye Ndunda 1st Proposed Interested Party Joel Nthenge Ndunda 2nd Proposed Interested Party Joan Mutile Ndunda 3rd Proposed Interested Party Benard Metho Ndunda 4th Proposed Interested Party Ann Mwikali Ndunda 5th Proposed Interested Party Mary Mbeke Ndunda 6th Proposed Interested Party Margaret Mumbua Ndunda 7th Proposed Interested Party Gregory Muthoka Ndunda 8th Proposed Interested Party Charles Musau Ndunda 9th Proposed Interested Party Ruling 1.This ruling considers the chamber summons filed by the proposed interested parties (“proposed IPs”), dated 9 October 2024, and expressed to have been brought under Sections 1A, 1B, 3 and 3A of the Civil Procedure Act and under Order 1 Rule 10 (2) of the Civil Procedure Rules. They pray for the following orders from this court: -a.That the proposed interested parties herein be joined as interested parties in this suit.b.That the cost of this application be provided for. 2.The motion is supported by the grounds outlined in the summons and the supporting affidavit of the 8th interested party, sworn on the same date. In summary, it is averred that the proposed IPs are family members of the 2nd defendant, Simon Ndunda Metho (deceased), who died on 08 July 2008. His estate was succeeded in Machakos Succession Cause Number 784 A of 2011. The deceased was the registered proprietor of parcel number MAVOKO TOWN BLOCK 2/38 (mother parcel). 3.This parcel ceased to exist after it was transmitted to the proposed IPs as beneficiaries of the estate, in accordance with the certificate of confirmation of grant in the above succession matter. Thereafter, the mother parcel was subsequently subdivided to create MAVOKO TOWN BLOCK 2/29297 to 29305 (subdivisions), and the resulting subdivisions were lawfully transmitted to the proposed IPs. That since the plaintiffs' pleadings refer to the mother parcel, it is in the interest of justice to have them joined to this suit as IPs. 4.In support of the assertions, several documents were presented to the court and the death certificate of the 2nd defendant shows he died on 25 August 2008, confirmation of grant on the deceased’s estate dated 26 April 2023 lists the mother parcel as one of the properties belonging to the deceased and certificates of official searches of the subdivisions reveals they are registered in the respective names of the proposed IPs. 5.The motion is strenuously challenged by the plaintiffs via the replying affidavit of Martin Karanja Waikwa, the 7th plaintiff, deposed on 6th February 2025, where the court is informed that this suit was published in a daily newspaper as directed by the court. The notices were served on several occasions, and the defendants herein were aware of the subject matter. That they had a duty to disclose the existence of the alleged orders but failed to do so, and moreover, the plaintiffs had no duty to involve or inform the proposed interested party of the existence of this suit, as they were unknown to them and had never been present on the ground. Moreover, their claim in the matter is entirely distinct from that of the proposed IPs; therefore, there is no merit in joining them in this suit. 6.As directed by the court, Ms. L. N. Ngolya & Co. Advocates for the proposed IPs filed their submissions dated 10 July 2025. Further, this court also received another set of submissions from Ms. Teresia Muthua & Co. Advocates, allegedly for the 1st defendant, dated 17 February 2026. However, this law firm is not on record for this party; rather, the law firm of Ms. Catherine Muriuki & Co. Advocates, which filed a notice of appointment for this party, is. Significantly, Ms. Teresia Muthua & Co. Advocates presented a notice of change of advocates for this party for assessment on 17 February 2026, which, despite invoicing, has never been paid. Consequently, these alleged submissions are hereby struck out. 7.Turning to the substance of the matter at hand, and having carefully considered the summons, its grounds, the affidavit, and the articulate rival submissions, including the provisions of the law and the judicial precedents relied upon, the distilled issues for determination are whether a suit against a deceased person is competent and whether the proposed IPs should be joined as parties to these proceedings. These issues shall be handled sequentially, but before doing so, it is necessary to note that the proposed IPs moved the court by way of summons rather than a motion. Be that as it may, this court finds that this is a mere technical issue that does not go to the substance of the matter at hand. We proceed. a. Whether a suit against a dead man is competent 8.Concerning this matter, it is now established legal doctrine that a lawsuit filed against a deceased individual is inherently null and void from the outset. This principle has been consistently affirmed in a series of judicial decisions. In Geeta Bharat Shah & 4 others v Omar Said Mwatayari & another [2009] KECA 126 (KLR), the Court of Appeal made the following rendition: -“In the result, as Bharatkumar Nathalal Shah was already dead by the time the suit was filed, 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.” 9.Additionally, in Manyange (Deceased) v TG (Minor suing through her mother and next friend WMG) [2024] KEHC 1083 (KLR), in reiterating on the settled law, cited several court decisions which this court concurs with:-‘In the case of Viktar Maina Ngunjiri & 4 others v Attorney General & 6 others [2018] eKLR, the court stated as doth: -“The estate of a deceased person may take over proceedings against him if that person were alive at the time the suit was filed. That notwithstanding, the estate must be made a party and authorized by the court through an executor or a personal representative. A formal application has to be filed to facilitate this. No grant of representation has been presented to court. In the instant case this cannot happen because the deceased died before the suit was filed and the representative of the estate has not been identified. Even if the representative were identified it is not possible to take over a nullity.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 fide 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 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 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.” 10.Having reviewed the uncontested documents as presented by the proposed IPs, it is evident that the lawsuit was instituted against a person who had already passed away (2nd defendant), as he died five years before the filing date of the suit on 24 January 2013. Guided by jurisprudence, the lawsuit against the 2nd defendant is deemed irregular and null and void. Whether the 1st and 2nd intended IPs should be joined as parties to these proceedings. 11.Respecting the law on this issue, guidance is drawn from Order 1 Rule 10(2) of the Civil Procedure Rules (CPR) which has mainly been interpreted to mean that the party who should be joined or added to civil proceedings, whether as a defendant, plaintiff, or interested party, whose presence in the proceedings is essential to assist the court in determining the matter effectively and comprehensively, should be included in the proceedings. This proviso states as follows:“The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.” 12The Black’s Law Dictionary, 11th Edn, page 1351, defines an interested party in the following terms:“A party who has a recognizable stake (and therefore standing) in a matter.” 13.The meaning of this definition was reiterated in the Supreme Court of Kenya's decision in Trusted Society of Human Rights Alliance v Matemo & 5 others [2014] KESC 32 (KLR), as follows:“ 3.An interested party was one who had a stake in the proceedings, though they were not initially a party to the cause. Such a person felt that their interest would not be well articulated unless they personally appeared in the proceedings, and championed their cause.” 14.When considering a motion for joinder, the court exercises prudent discretion rooted in law and reason. Therefore, this court adopts the guiding principles established in Muruatetu & another v Republic; Kenya National Commission on Human Rights & 2 others (Interested Parties); Death Penalty Project (Intended Amicus Curiae) [2016] KESC 12 (KLR), thus: -“ 37.From the foregoing legal provisions, and from the case law, the following elements emerge as applicable where a party seeks to be enjoined in proceedings as an interested party: One must move the Court by way of a formal application. Enjoinment is not as of right, but is at the discretion of the Court; hence, sufficient grounds must be laid before the Court, on the basis of the following elements:The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral.The prejudice to be suffered by the intended interested party in case of non-joinder, must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote.Lastly, a party must, in its application, set out the case and/or submissions it intends to make before the Court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the Court.” 15.In this case, the plaintiffs and proposed interested parties are in opposition, with the former asserting that the motion has not satisfied the required threshold. In contrast, the latter (proposed IPs) claim that they have. Therefore, it calls upon this court to exercise its discretion, consider whether the proposed IPs have met the established threshold, and conclude accordingly. 16.Hence, upon scrutiny of the proposed IPs’ official searches, what is clear to this court is that the proposed IPs are the registered proprietors of the subdivisions. Although they contend that these are subdivisions of the mother parcel, the relevant green card has not yet been provided at this stage of the proceedings. In spite of this non-presentation at this interlocutory stage, what is certain is that the mother parcel forms part of the deceased’s estate as evidenced by the confirmation of the grant. 17.Additionally, the mother parcel constitutes one of the parcels of land for which the plaintiffs have sought an order of adverse possession. In circumstances where there is a possibility that the subdivisions originate from the mother parcel, this court disagrees with the plaintiffs and concludes that the proposed IPs have a legitimate interest in the case. Their stake is proximate and identifiable and will be prejudiced if they are not joined. The court also finds that the proposed IPs should be joined as defendants rather than as proposed IPs. It also finds merit in the summons. 18.In the end, and for the above reasons and findings, this court hereby issues the following disposal orders: -a.That the suit against the 2nd defendant is hereby struck out with no orders as to costs.b.That the proposed interested parties be joined to these proceedings as defendants.c.The plaintiffs and all the other parties are directed to serve all pleadings on the proposed interested parties within 21 days hereof.d.That upon being served, the proposed interested parties as defendants shall file responses to the pleadings, including a counterclaim (if need be), within 21 days of service, and they shall serve their filings on all the parties hereto.e.That parties are directed to comply with Order 11 of the Civil Procedure Rules within 60 days.f.That, from now henceforth, no other or further applications shall be entertained by the court unless with leave.g.That strict timelines apply.h.That a mention date shall be given for purposes of pretrial directionsi.Costs shall be in the cause.Orders accordingly. DELIVERED AND DATED AT MACHAKOS THIS 26TH DAY OF MAY, 2026.HON. A. Y. KOROSSJUDGE26.05.2026RULING DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORMIn the presence of;Ms. Kanja Court Assistant.Mr. Ngolya for applicant.Mr. Wanyoro for Mrs Ngugi for 1st defendant.Miss Muende for plaintiff.