https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1152

Muriithi & another v Mureithi & another (Civil Appeal E029 of 2024) [2026] KECA 1152 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KECA 1152 (KLR) Republic of Kenya In the Court of Appeal at Nyeri Civil Appeal E029 of 2024 EK Makori, J June 11, 2026 Between Timothy Wangombe Muriithi 1st Appellant Lydia Nyorabi Muriithi 2nd Appellant and Bernice Wamuyu Mureithi 1st Respondent Joseph Njaramba Wandimi 2nd Respondent Ruling 1.Counsel for the Respondents herein lodged a preliminary objection dated September 17, 2025, asserting that the entire appeal ought to be struck out based on the following grounds.a.The Appellants herein have purported to institute and prosecute the present Appeal in the name of a deceased person without first obtaining a grant of letters of administration, in violation of Section 82(a) of the Law of Succession Act (Cap. 160 Laws of Kenya).b.The Respondent is equally sued in the name of a deceased person, in the absence of any duly appointed legal representative of the estate, rendering the proceedings fatally defective and incompetent from the outset.c.It is a settled principle of law that suits and appeals cannot be instituted or maintained in the names of deceased persons. Proceedings commenced by or against deceased persons are nullities and incapable of supporting any valid orders.d.Consequently, this Honor Court lacks jurisdiction to entertain and determine the present Appeal.e.The entire Appeal is therefore fatally defective and incompetent and ought to be stricken out with costs. 2.Learned counsel P.G Wanyonyi, representing the Appellants, also swore an affidavit supporting their preliminary objection. He stated that the Appellants attempted to initiate and pursue this Appeal using the name of a deceased person without first obtaining a grant of letters of administration, which is against Section 82(a) of the Law of Succession Act, Cap—160 Laws of Kenya. 3.The Respondent is also sued in the name of a deceased individual, in the absence of a duly appointed legal representative of the estate, rendering the proceedings fundamentally defective and lacking jurisdiction from the outset. 4.The counsel representing the Respondents contends that it is a well-established legal principle that lawsuits and appeals cannot be initiated or pursued in the names of deceased individuals. Proceedings initiated by or against deceased persons are null and void, and therefore, cannot underpin any legally valid orders. 5.Consequently, it is argued that this Honorable Court lacks the jurisdiction to entertain and determine the present appeal, and that the entire appeal is therefore fatally defective and incompetent and ought to be struck out with costs.The Respondent’s submissions in support of their preliminary objection. 6.The counsel representing the Respondents contended that Order 24 Rules 3(2) and 4(3) of the Civil Procedure Rules, 2010, stipulate that in the event of the death of a sole appellant or respondent, and in the absence of a substitution within one year, the appeal shall lapse automatically. Once such an abatement occurs, the proceedings are deemed null and void unless revived through a proper application pursuant to Order 24 Rule 7(2), which has not been submitted in the present case. 7.Counsel emphasized that the submitted death certificate indicates that the 1st Respondent is deceased; however, to date, no legal representatives have been appointed or substituted. Consequently, no party possesses the legal standing to prosecute or defend this appeal on behalf of the 1st Respondent. 8.Hence, the Respondent contends that the appeal is extinguished by operation of law, and any subsequent proceedings would be deemed null and void. The counsel cited the legal precedents in Said Sweilem Gheithan Saanum v Commissioner of Lands & Others [2015] eKLR and Rebecca Mijide Mungole & Another v Kenya Power & Lighting Company Ltd & 2 Others [2017] eKLR. The Appellants’ submissions in response to the preliminary objection 9.Counsel for the Appellants argued that the death of the 1st respondent does not automatically lead to the abatement of the entire appeal, as proceedings may continue against the 2nd respondent, who remains alive. 10.Furthermore, they contend that this appeal is directed against the trial court's ruling dated 5 September 2024, which was issued regarding the Notice of Motion application filed on 2 December 2021 by the 2nd respondent, who sought to eject the Appellants from his property known as Nyeri Ngarengiro/449. 11.Therefore, the subject matter of this appeal is the subsequent eviction orders issued against the appellants concerning the 2nd respondent’s parcel of land, Nyeri Ngarengiro/449, and the cause of action remains valid. 12.It is the Appellant’s submission that this appeal has not abated because the cause of action underlying this appeal survives the death of the 1st respondent. Therefore, this appeal can proceed against the 2nd respondent. Analysis and Determination 13.Counsel representing the Respondents has presented a preliminary objection asserting that the 1st Respondent has passed away. Furthermore, it is argued that, in the absence of a legally appointed representative for his estate, the appeal has been rendered void and is considered a nullity. 14.The seminal case concerning preliminary objections is Mukisa Biscuit Manufacturers Ltd v West End Distributors Ltd (1969) EA 696, in which the court delineated a preliminary objection as follows:“….so far as I am aware, 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.” 15.Therefore, a preliminary objection ought to be raised solely on a matter of law. It was determined in Oraro v Mbaja [2005] KEHC 3182 (KLR) that:“I think the principle is abundantly clear. A “preliminary objection”, correctly understood is now well identified as, and declared to be the point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed. I am in agreement with learned counsel that, “where a court needs to investigate facts, a matter cannot be raised as a preliminary point.” 16.The Respondent’s capacity to be subject to legal proceedings is a fundamental point of law, as the validity of a suit cannot be maintained without it. In this instance, the claim is that the 1st Respondent is deceased and has not been substituted; consequently, the Appellants contend that the appeal is abated on this ground. The Respondents’ submissions allege that both Appellants are deceased, but no such evidence, such as death certificates, has been provided. If they are indeed both deceased for more than one year, the appeal abates under Order 24 rule 3. Appellant’s counsel did not clarify this position. 17.Order 24, Rule 4 of the Civil Procedure Rules provides that:“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.” 18.In this matter, the 1st Respondent passed away on October 29, 2022, as evidenced by the Certificate of Death attached to the affidavit of the 1st Respondent in support of their preliminary objection. However, she was not the sole respondent, and the 2nd Respondent remains alive. The cause of action continues to exist against him. 19.The appeal was based on the application dated 2nd December 2021, submitted by the 2nd Defendant in Nyeri CM ELC 201 of 2018, who is also the 2nd Respondent and remains alive. He requested an order directing Hippo General Merchants and the Court Bailiffs to evict the respondents, including the Appellants and their families, relatives, agents, servants, or anyone claiming an interest through them, and to remove all structures from their land, Nyeri/Ngaringiro/449. 20.It is clear that the suit has abated against the 1st Respondent because over a year has passed since her death, and no personal representative of her estate has been appointed as her substitute. Nonetheless, the 2nd Respondent retains an interest in this matter, so the cause of action survives. Matheka J in Ahmed v Varsani & 4 others (Environment and Land Case E013 of 2023) [2025] KEELC 18403 (KLR) observed that:“It is trite that the death of a Plaintiff or Defendant shall not cause the suit to abate if the cause of action survives or continues. This suit, being in respect to land rights, the cause of action survived the death of the 1st and 2nd Defendants. On the issue of the suit having abated is provided for under Order 24 Rule 4(1) – (3)…..................The 2nd Defendant died on 1st August 2024 while the suit was pending. Documentary evidence shows that the Applicant herein was issued with the Grant of Probate in respect of the Estate the 2nd Defendant on 14th January 2025 this application was filed on the 25th April 2025 within one year and hence the suit as against the 2nd Defendant had not abated.” 21.Consequently, the preliminary objection dated September 17, 2025, is without merit and is hereby dismissed with costs. DATED, SIGNED, AND ELECTRONICALLY DELIVERED IN NYERI ON THE 11TH DAY OF JUNE, 2026.E. K. MAKORIJUDGEIn the presence of:Mr. Nderi for the AppellantMr. Wanyonyi for the RespondentDenis: Court Assistant