[2022] KEELC 3554 (KLR)
The court found that the defendant referred to in the suit is the same person as the one mentioned in the certificate of grant and death certificate. The court had no reason to doubt the authenticity of the death certificate. Since the defendant was deceased before the institution of the suit, the proceedings were a...
Source-derived case information.
- Citation
- [2022] KEELC 3554 (KLR)
- Parties
- Plaintiff: Joseph Nyamumbo Obiri; Defendant: Ebado Elmi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E381 of 2021
- Procedural Posture
- Environment and Land Case / Ruling on Sustainability of Proceedings Due to Defendant's Death
- Outcome
- suit struck out as a nullity due to defendant's prior death
- Judges
- LN Mbugua
- Legal Topics
- Joinder of Parties, Death of Defendant, Striking Out Suit, Estate Distribution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Nyamumbo Obiri
Plaintiff
Ebado Elmi
Defendant
Procedural Posture
Environment and Land Case / Ruling on Sustainability of Proceedings Due to Defendant's Death
Legal Issues
- 1 Whether the proceedings can be sustained given the averment that the defendant is deceased.
- 2 Whether the death certificate provided relates to the defendant in the suit.
- 3 Whether the plaintiff should be allowed to apply for joinder of the alleged beneficiaries of the deceased's estate.
Ratio Decidendi
The court found that the defendant referred to in the suit is the same person as the one mentioned in the certificate of grant and death certificate. The court had no reason to doubt the authenticity of the death certificate. Since the defendant was deceased before the institution of the suit, the proceedings were a nullity ab initio. The court held that joinder of other parties could not be entertained in a suit that is already a nullity. Consequently, the suit was struck out as it could not be sustained against a deceased defendant.
Court Disposition
suit struck out as a nullity due to defendant's prior death
Orders
- The suit is struck out with no orders as to costs.
- Any orders given earlier on are hereby discharged.
Full Case Text
Judgment text and source record
20 paragraphs
Obiri v Elmi (Environment & Land Case E381 of 2021) [2022] KEELC 3554 (KLR) (12 May 2022) (Ruling)
Neutral citation: [2022] KEELC 3554 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment & Land Case E381 of 2021
LN Mbugua, J
May 12, 2022
Between
Joseph Nyamumbo Obiri
Plaintiff
and
Ebado Elmi
Defendant
Ruling
1. The singular question falling for determination at this stage is whether these proceedings herein can be sustained in view of the averments advanced by one Mohamed Ali Ibrahim that Defendant died in 1990s.
2. I have considered the affidavits as well as the rival submissions presented by the warring parties. Mohamed Ali Ibrahim contends that Defendant who is his sister died years ago in 1990s. He has availed a copy of the death certificate of the Defendant which indicates that Ibado Elmi Badil died on October 10, 1990. He has also availed a certificate of confirmation of a grant issued on December 30, 2021.
3. The Plaintiff avers that the death certificate is suspicious as it was obtained 27 years after the alleged death of Defendant and that it is not clear whether Ibado Elmi Badil who is allegedly deceased is the same person as the one sued as Ebado Elmi.
4. Plaintiff further avers that if the death certificate relates to Ebado Elmi, he should then be given an opportunity to apply for joinder of Ibrahim Mohamed and the persons to whom the suit property has purportedly been distributed through the purported confirmation of a grant; that is Osman Elmi, Halima Elmi, Fatma Ahmed, Khadija Elmi and Mariam Elmi.
5. I have considered all the issues raised herein. The property being claimed by the Plaintiff is Plot No 36/11/98, which is the same property that is up for distribution in respect of the deceased estate (Ibado Elmi Bodil). I have no hesitation therefore in finding that the Defendant referred to in the suit is the one mentioned in the certificate of grant. This court has also no reason to refute the death certificate. The issue of joinder cannot be canvassed in a suit which is certainly a nullity. The end result is that this suit cannot be sustained as Defendant is deceased. The same is hereby struck out with no orders as to costs. Any orders given earlier on are hereby discharged.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 12TH DAY OF MAY, 2022 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-Mituga holding brief for Mr. Nyamweya for the Plaintiff.M/S Okoth holding brief for Mr. Itemere for the DefendantCourt Assistant: June Nafula