[2023] KEELC 16456 (KLR)
The court found that the suit against the 2nd defendant, who was deceased since 1977, was a nullity from the beginning and could not be maintained or amended to substitute a legal representative. Furthermore, since the land was registered in the names of both the 1st defendant and the deceased as tenants in common,...
Source-derived case information.
- Citation
- [2023] KEELC 16456 (KLR)
- Parties
- Plaintiff: John Ochieng Limbe; Defendant: David Otieno Wandhere; Defendant: Odero Ochieng
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E001 of 2021
- Procedural Posture
- Environment and Land Case / Ruling on Validity of Suit and Parties
- Outcome
- suit struck out
- Judges
- AY Koross
- Legal Topics
- Adverse Possession, Tenancy in Common, Nullity of Suit Against Deceased, Registered Ownership, Striking Out Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Ochieng Limbe
Plaintiff
David Otieno Wandhere
Defendant
Odero Ochieng
Defendant
Procedural Posture
Environment and Land Case / Ruling on Validity of Suit and Parties
Legal Issues
- 1 Whether a suit can be maintained against a deceased person.
- 2 Whether the suit for adverse possession is maintainable against the 1st defendant alone after the 2nd defendant's death.
- 3 Whether the entire suit should be struck out given the circumstances of ownership.
Ratio Decidendi
The court found that the suit against the 2nd defendant, who was deceased since 1977, was a nullity from the beginning and could not be maintained or amended to substitute a legal representative. Furthermore, since the land was registered in the names of both the 1st defendant and the deceased as tenants in common, and the cause of action was based on adverse possession, the court held that proceeding with the suit against only the 1st defendant would be futile. The nature of the claim required both registered owners to be parties, and with one being deceased and improperly before the court, the entire suit was struck out as incompetent.
Court Disposition
suit struck out
Orders
- The suit against the 2nd defendant is struck out as a nullity.
- The entire suit is struck out.
Full Case Text
Judgment text and source record
23 paragraphs
Limbe v Wandhere & another (Environment & Land Case E001 of 2021) [2023] KEELC 16456 (KLR) (23 March 2023) (Ruling)
Neutral citation: [2023] KEELC 16456 (KLR)
Republic of Kenya
In the Environment and Land Court at Siaya
Environment & Land Case E001 of 2021
AY Koross, J
March 23, 2023
Between
John Ochieng Limbe
Plaintiff
and
David Otieno Wandhere
1st Defendant
Odero Ochieng
2nd Defendant
Ruling
1. When this matter came up for hearing before me on February 1, 2023 and after PW 1 had taken the stand, it emerged the 2nd defendant in this case died in the year 1977. The person who had been attending court as the 2nd defendant was his son Charles Adego Odero.
2. It is trite law a suit against a deceased person is a nullity from inception and a legal representative of his estate cannot be joined in the proceedings. The import of such a suit is that it is as if no suit had ever been filed against the deceased person. See Viktar Maina Ngunjiri & 4 others v Attorney General & 6 others [2018] eKLR where the court cited with approval the Indian persuasive decision of Pratap Chand Mehta v Chrisna Devi Mehta AIR 1988 Delhi 219.
3. It is the finding this court the suit against the 2nd defendant is a nullity and I hereby strike it out against him.
4. This court has noted the cause of action against the 1st defendant is on land parcel No South Gem/Ndori 814 which is registered in the names of the 1st defendant and the deceased Odera Ochieng as tenants in common in equal shares. The cause of action is on adverse possession which is maintainable against the registered owners; in this case the 1st defendant and the estate of the deceased Odera Ochieng.See the Court of Appeal decision ofChevron (K) Ltd v Harrison Charo Wa Shutu [2016] where the court stated: -‘It is a settled principle that a claim for adverse possession can only be maintained against a registered owner...’
5. As tenants in common, the 1st defendant and the deceased Odera Ochieng held concurrent ownership simultaneously where each person held an individual and undivided interest in the suit property.
6. Considering the nature of the claim and, circumstances of ownership, it is the finding of this court it would be an exercise in futility for this court to proceed with the hearing of this case against the 1st defendant. It is for these reasons that I hereby strike out the entire suit. There shall be no orders as to costs.
DELIVERED AND DATED AT SIAYA THIS 23RD DAY OF MARCH 2023. HON. A. Y. KOROSSJUDGE23/03/2023Ruling delivered virtually through Microsoft Teams Video Conferencing Platform in the Presence of:In the Presence of:Mr. Ariho h/b for Mr. Ogonda for the PlaintiffThe 1st defendant acts in personCourt assistant: Ishmael Orwa