[2024] KEELC 920 (KLR)
The court declined to grant directions for delivery of judgment because no particulars of the defendant's death had been availed, despite previous orders requiring such proof. The court emphasized that a suit cannot be sustained against a deceased person without proper substitution or evidence of death, and that...
Source-derived case information.
- Citation
- [2024] KEELC 920 (KLR)
- Parties
- Plaintiff: Pius Oyuyo Obiero; Defendant: Lydushka Hornik Piotto; Respondent: Daniella Moretti (administrator of defendant's estate)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 314 of 2016
- Procedural Posture
- Environment and Land Case / Ruling on Request for Judgment and Directions Following Alleged Death of Defendant
- Outcome
- No judgment delivered; pretrial date to be set; particulars of death of defendant still required.
- Judges
- LN Mbugua
- Legal Topics
- Revival of Suit, Death of Party, Want of Prosecution, Pretrial Directions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pius Oyuyo Obiero
Plaintiff
Lydushka Hornik Piotto
Defendant
Daniella Moretti (administrator of defendant's estate)
Respondent
Procedural Posture
Environment and Land Case / Ruling on Request for Judgment and Directions Following Alleged Death of Defendant
Legal Issues
- 1 Whether the court can proceed to judgment in the absence of particulars confirming the defendant's death.
- 2 Whether a suit can be sustained against a deceased defendant without substitution or proof of death.
- 3 Whether directions for hearing or judgment should be given in the current procedural posture.
Ratio Decidendi
The court declined to grant directions for delivery of judgment because no particulars of the defendant's death had been availed, despite previous orders requiring such proof. The court emphasized that a suit cannot be sustained against a deceased person without proper substitution or evidence of death, and that proceeding in such circumstances would render the suit a nullity. The court therefore set the matter for pretrial and reiterated the need for the respondent's counsel to provide particulars of death if the defendant is indeed deceased.
Court Disposition
No judgment delivered; pretrial date to be set; particulars of death of defendant still required.
Orders
- Matter to be set down for pretrial.
- Respondent's counsel at liberty to avail particulars of the defendant's death.
Full Case Text
Judgment text and source record
22 paragraphs
Obiero v Piotto (Environment & Land Case 314 of 2016) [2024] KEELC 920 (KLR) (22 February 2024) (Ruling)
Neutral citation: [2024] KEELC 920 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment & Land Case 314 of 2016
LN Mbugua, J
February 22, 2024
Between
Pius Oyuyo Obiero
Plaintiff
and
Lydushka Hornik Piotto
Defendant
Ruling
1. The Defendant is allegedly deceased. This information was relayed to this court by a counsel named Kahura representing one Daniella Moretti who is said to be one of the administrators of the estate of the Defendant. The counsel brought to the attention of the court the existence of another case E023/2023, where Daniella is a party representing the estate of Lydushka Hornik Piotto.
2. On 29. 1.2024, counsel Kahura stated that they could not file anything in file number 314/2016 because their client is deceased.
3. On the other hand, the applicant wants a judgment in the main originating summons, contending that they duly filed submissions dated 14. 9.2022 and that no responses were ever filed.
4. A perusal of the records indicates that way back 21. 9.2023, the court gave orders as follows;“Death is a serious issue and the court must be given further and better particulars to determine whether this suit is a nullity. In the circumstances I direct that such particulars of the death of the respondent. i.e a death certificate be availed to this court to enable the court give further directions.”
5. To date no such particulars of death have been availed to this court.
6. It is noted that this matter was filed in High court on 25. 4. 2016 and was transferred to this court around March 2017. It was dismissed for want of prosecution on 26. 2.2018. An application to revive the suit dated 17. 7.2022 was dismissed on 31. 10. 2022. But another application for revival of the suit dated 1. 11. 2022 was allowed on 21. 9.2023. I pose the question; at what point in the lifespan of the suit did the court give directions on the hearing of the case?. None!. I therefore decline to grant any directions on delivery of a judgment.
7. I will proceed to give a date for pretrial of the suit. At the same time, the court still reiterates that death is a grave matter and a proper suit cannot be sustained against a dead person as it would be a nullity. See Japhet Nzila Muangi v Hamisi Juma Malee [2022] eKLR. In that regard, Mr. Kahura is still at liberty to avail the particulars of the death of the defendant.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 22ND DAY OF FEBRUARY, 2024 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-Ann Makori for PlaintiffKahura for Daniella MaretiCourt assistant: Eddel