https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5170

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT VIHIGA** **ELC APPEAL NO. E019 OF 2025** EVERLYNE OMINDE……………………………….…………….….1ST APPELLANT DAVID LUMWAGI…………………………….………………………2ND APPELLANT LUGANDAH ELVIS ISAGI……………………………………...........3RD APPELLANT ARTHUR MUNZAZI EVOGE…………………………………...…...4TH APPELLANT JAMES OGOLA………………………………………………….…….5TH APPELLANT VERSUS SHUAH AYAKO ADORI ……………………………………………..RESPONDENT *(Being an appeal from the ruling of Hon. J. A. Agonda, Senior Principal Magistrate, delivered on 14 October 2025 in Vihiga Magistrate’s Court Land Case No. E050 of 2024.)* **JUDGMENT** **INTRODUCTION** 1. This is an appeal from the ruling of Hon. J. A. Agonda, Senior Principal Magistrate, delivered on 14 October 2025 in Vihiga Magistrate’s Court Land Case No. E050 of 2024. By that ruling, the trial court allowed the respondent’s notice of motion dated 16 July 2025 and ordered that the persons named as the 3rd and 9th defendants, although already deceased when the suit was instituted, be substituted by Violet Muruka and Violet Mung’ang’a, described respectively as the widow and daughter of the deceased persons. 2. The appeal raises a narrow but significant question concerning legal personality and the representation of estates in civil proceedings. The question is whether a person who was already deceased when a suit was filed can subsequently be replaced through substitution under Order 24 of the Civil Procedure Rules, or whether the defect may be cured by amendment or joinder under Order 1. 3. A related question is whether a relative of a deceased person may be brought on record merely by reason of kinship or beneficial interest, without proof of a grant of representation authorising that person to act for the estate. 4. These questions require a clear distinction between two situations. The first is where a party dies after valid proceedings have been instituted. In that event, Order 24 provides a mechanism for bringing the deceased party’s legal representative on record. The second is where the person named as a party was already dead before the suit was filed. In that situation, no valid proceedings come into existence against that person because a deceased person lacks legal personality and cannot be sued. **BACKGROUND** 1. The respondent instituted the lower court suit on 23 August 2024 against twelve defendants. The dispute concerns several subdivisions said to have emanated from land parcel North/Maragoli/Chavakali/470. The respondent seeks, among other reliefs, cancellation of titles and a permanent injunction. 2. It subsequently emerged that the persons named as the 3rd and 9th defendants had died before the suit was filed. The death certificate in the record indicates that the person named as the 3rd defendant died on 16 May 2024. The burial permit relating to the person named as the 9th defendant indicates that he died on 19 June 2020. Those dates were not disputed. 3. The issue arose after orders had been made in the suit and the present appellants challenged service. In an earlier ruling delivered on 24 May 2025, the trial court set aside the impugned orders after accepting, among other matters, that the persons named as the 3rd and 9th defendants could not have been served because they were deceased. 4. The respondent thereafter filed the notice of motion dated 16 July 2025 seeking to substitute the two deceased persons with Violet Muruka and Violet Mung’ang’a. She stated that she had been unaware of the deaths when filing suit and had relied on official searches from the land registry. She described the proposed substitutes as the widow and daughter of the deceased persons and contended that they had an interest in the affected properties. 5. The application was opposed by the 1st, 4th, 8th, 10th and 11th defendants. Their position was that the suit against the two deceased persons was a nullity from inception, that substitution under Order 24 was unavailable, and that the proposed substitutes had not demonstrated legal capacity to represent the respective estates. **THE RULING OF THE TRIAL COURT** 1. The learned magistrate treated the matter principally as one of substitution, misjoinder and amendment. She referred to Order 24 rule 4 and held that substitution had been sought within one year. She also invoked Order 1 rules 9 and 10, Article 159(2)(d) of the Constitution and the general preference for resolving disputes on their merits. 2. The trial court further held that the respondent should not be penalised for having included the deceased persons and criticised the opposing defendants for not disclosing the deaths earlier. It concluded that the proposed representatives had a direct and substantial interest in the litigation and were proper parties. It consequently ordered their substitution and granted consequential leave to amend the plaint. **THE APPEAL** 1. The memorandum of appeal raises eight grounds. In substance, the appellants contend that the learned magistrate erred by treating proceedings instituted against deceased persons as curable; disregarding binding precedent; ordering substitution by persons without legal capacity; misapplying Order 24; mischaracterising the defect as misjoinder; making findings inconsistent with the record concerning disclosure of the deaths; invoking Article 159(2)(d) to cure a substantive nullity; and failing to consider their submissions and authorities. 2. The appellants ask that the ruling be set aside and that the lower court suit, in so far as it is directed against the persons named as the 3rd and 9th defendants, be struck out. They also seek costs. **SUBMISSIONS** 1. The appellants’ case is founded on the principle that proceedings commenced against a person who was already deceased at the date of filing are nullity ab initio. Such a person has no legal personality and is therefore incapable of being sued. Relying principally on ***Geeta Bharat Shah & 4 Others v Omar Said Mwatayari & Another, Civil Appeal No. 46 of 2008***, the appellants contend that Order 24 of the Civil Procedure Rules applies only where a party dies after the institution of a competent suit. In their view, the provision does not authorise substitution where no valid proceedings ever came into existence against the deceased person. 2. They further submit that the defect is substantive and cannot be cured by recourse to Order 1 of the Civil Procedure Rules or Article 159(2)(d) of the Constitution. According to them, the provisions on misjoinder, non-joinder and amendment presuppose the existence of persons possessing legal capacity and cannot be invoked to confer legal personality upon a person who was already dead when the suit was instituted. 3. The appellants add that the proposed substitutes were not shown to hold grants of representation and therefore lacked capacity to represent the estates. They also challenge the trial court’s finding that they withheld information concerning the deaths. They maintain that the issue was raised at the earliest opportunity, upon their first appearance before the trial court, and was subsequently relied upon in their application to set aside the earlier orders. 4. The respondent opposes the appeal and supports the decision of the trial court. She explains that, when instituting the suit, she was unaware that the persons named as the 3rd and 9th defendants had already died. According to her, the suit was filed on the strength of official searches obtained from the land registry, which reflected the deceased persons as the registered proprietors of the parcels concerned. She therefore contends that their inclusion in the plaint was an innocent and bona fide error. 5. The respondent distinguishes between a suit brought solely against a person who was already deceased and one, such as the present case, instituted against several defendants, most of whom were alive and capable of being sued. Her position is that, even if the proceedings against the two deceased defendants were defective, that defect did not invalidate the entire suit against the remaining defendants. 6. She argues that the suit remained competent and capable of proceeding and that the proper course was to bring on record persons representing the estates of the deceased defendants so that all interests affected by the dispute could be heard and determined. 7. In support of that position, the respondent invokes Order 1 rule 9 of the Civil Procedure Rules, which provides that a suit should not be defeated merely by reason of misjoinder or non-joinder of parties. She maintains that the erroneous inclusion of the deceased persons was a curable irregularity and that the court was empowered to facilitate amendment of the pleadings and joinder or substitution of the appropriate representatives. 8. The respondent further contends that striking out the suit against the deceased defendants without permitting their estates to be represented would elevate procedural form over substantive justice and might result in the dispute being determined without the participation of persons whose rights and interests could be directly affected. 9. She therefore urges that the substitution ordered by the trial court was intended to preserve the suit, secure a fair hearing for all interested parties and enable the court to determine the real controversy on its merits. She contends that no prejudice would be occasioned to the appellants because they would retain the right to respond to amended pleadings and challenge the claim at the hearing. On that basis, she asks the Court to dismiss the appeal with costs. **DUTY OF THE FIRST APPELLATE COURT** 1. This being a first appeal, the Court is required to reconsider the material placed before the trial court and reach its own conclusions, while bearing in mind that it did not hear oral evidence. The appeal is from an interlocutory ruling founded substantially on undisputed facts and the interpretation of procedural and succession law. The Court is therefore in as good a position as the trial court to determine the legal effect of those facts. **ISSUES FOR DETERMINATION** 1. The grounds of appeal and the parties’ submissions may be condensed into the following issues: 2. Whether valid proceedings were instituted against the persons named as the 3rd and 9th defendants; 3. Whether the defect could be cured by substitution, amendment or joinder; 4. Whether the proposed substitutes had legal capacity to represent the respective estates; 5. What effect the defect had on the suit against the surviving defendants; and 6. What orders should be made on the appeal and costs. **ANALYSIS** **(a) Whether valid proceedings were instituted against the persons named as the 3rd and 9th defendants** 1. It is common ground that the persons named as the 3rd and 9th defendants had died before 23 August 2024, when the plaint was filed. The trial court was therefore not dealing with the death of parties during the pendency of valid proceedings. It was confronted with proceedings purportedly commenced against persons who had already ceased to possess legal personality. 2. A civil suit can only be instituted against a person or entity recognised by law as capable of bearing rights and obligations, receiving service and being bound by the court’s process. Upon death, a natural person ceases to have legal personality. Any surviving claim against such a person must therefore be directed against the estate through a duly appointed personal representative. 3. In ***Geeta Bharat Shah & 4 Others v Omar Said Mwatayari & Another*, Civil Appeal No. 46 of 2008**, the Court of Appeal held that where a person was already deceased when a suit was filed, the suit against that person was a nullity and the administrators of the estate could not take over the proceedings by substitution. That principle is binding upon both this Court and the trial court. 4. The respondent’s explanation that she was unaware of the deaths and had relied on official land searches may account for how the error arose. It cannot, however, confer legal personality upon persons who were already deceased or validate proceedings which the law does not recognize. Good faith may be relevant to costs or case management, but it does not alter the legal status of the persons against whom the suit was purportedly instituted. 5. I therefore find that no valid proceedings were instituted against the persons named as the 3rd and 9th defendants. The plaint was nullity ab initio only in so far as it purported to commence proceedings against them. **(b) Whether the defect could be cured by substitution, amendment or joinder** 1. Order 24 rule 4 of the Civil Procedure Rules is premised on the existence of a valid suit and the subsequent death of one of several defendants, or of a sole defendant, where the cause of action survives. It permits the legal representative of the deceased defendant to be made a party to the existing proceedings. 2. The provision cannot reasonably be extended to a person who was already dead before the suit was filed. In such a case, there was no valid original defendant before the court and therefore no party in whose place another person could be substituted. Substitution under Order 24 is consequential upon the death of an existing party; it is not a mechanism for retrospectively creating a party where none existed. 3. The learned magistrate also relied on Order 1 rules 9 and 10 of the Civil Procedure Rules. Those provisions are intended to prevent an otherwise competent suit from failing merely because a living legal person was wrongly joined, omitted or improperly described. They also empower the court to add a necessary or proper party. They do not, however, transform a deceased person into a party to proceedings or convert an application for substitution into a lawful joinder of an estate representative. 4. It is necessary to distinguish substitution, amendment and joinder. Substitution assumes that a valid party existed and subsequently died. Amendment alters the pleadings, while joinder introduces a new party into the proceedings. The fact that substitution was unavailable does not necessarily mean that a duly appointed representative of an estate can never be added as a new party upon a proper application. 5. Whether such amendment or joinder may lawfully be permitted depends on the nature of the claim, the terms of the proposed amendment, the representative capacity of the person sought to be joined, the law of limitation and any prejudice likely to be occasioned to the other parties. Those matters were not properly before the trial court. The application before it sought substitution under Order 24 of relatives who had not demonstrated authority to represent the respective estates. 6. Article 159(2)(d) of the Constitution does not cure the defect. The provision directs courts to administer justice without undue regard to procedural technicalities. It does not authorise a court to disregard substantive requirements concerning legal personality, capacity and representation of deceased persons’ estates. 7. The learned magistrate was correct in her general concern that disputes should, where possible, be determined on their merits and that misjoinder should not defeat an otherwise competent suit. The error lay in applying those principles to a fundamentally different defect. A court may cure an irregular joinder, but it cannot substitute a representative for a person who never validly became a party. 8. I accordingly find that the defect could not be cured by substitution under Order 24. Whether a duly appointed representative may subsequently be introduced through amendment or joinder is a separate question which can only be determined upon a proper application and subject to all applicable legal requirements. **(c) Whether the proposed substitutes had legal capacity to represent the respective estates** 1. There was a further and independent difficulty with the order under appeal. Violet Muruka and Violet Mung’ang’a were described merely as a widow and a daughter of the deceased persons. No grant of representation was exhibited before the trial court. 2. A beneficiary and a personal representative occupy legally distinct positions. Kinship, beneficial interest or possession of estate property does not, without more, confer authority to institute or defend proceedings, receive service or bind an estate. 3. A deceased person’s estate may only be represented by an executor or administrator duly appointed under a grant of representation, including an appropriate limited grant where the law permits. The requirement is substantive. It protects beneficiaries, creditors and the integrity of the succession process and cannot be dispensed with merely in the interests of expedition. 4. The trial court therefore erred in ordering substitution without first satisfying itself that each proposed substitute had been duly authorised to act for the relevant estate. Their relationship to the deceased persons and their alleged interest in the suit properties did not, by themselves, confer representative capacity. **(d) What effect the defect had on the suit against the surviving defendants** 1. The appellants’ objection was directed at the proceedings against the persons named as the 3rd and 9th defendants. The plaint had, however, been filed against twelve defendants, ten of whom were alive and capable of being sued when the proceedings were instituted. 2. The inclusion of the names of two deceased persons did not, without more, render the entire suit a nullity against the living defendants. The invalidity is confined to the purported proceedings against the deceased persons. 3. Whether the causes of action and reliefs sought are so legally indivisible that the suit cannot effectively proceed against the surviving defendants is a different issue. That question was neither determined by the trial court nor fully argued before this Court. It would therefore be inappropriate to decide it in this appeal. 4. The record also does not support the trial court’s finding that the appellants deliberately withheld information concerning the deaths. The issue was raised upon their first appearance and was subsequently relied upon in the application that led to the setting aside of the earlier orders. In any event, even if disclosure had been delayed, the conduct of the parties could not create legal personality or validate proceedings against persons who were already deceased when the suit was filed. 5. I therefore find that the nullity is limited to the proceedings against the persons named as the 3rd and 9th defendants. The suit against the remaining defendants is not invalidated merely because the two deceased persons were included in the plaint. **(e) What orders should be made on the appeal and costs** 1. The governing principle may therefore be stated as follows: a person who was deceased when a suit was instituted lacked legal personality and could not become a party to those proceedings. Order 24, which presupposes the death of a party after commencement of a competent suit, cannot be invoked to substitute another person in place of one who never validly became a defendant. 2. Where several defendants were sued and some were alive, the invalidity is ordinarily confined to the purported proceedings against the deceased persons and does not, without more, render the entire suit a nullity. A representative of the deceased’s estate may only be brought before the court through a legally competent process and upon proof of a grant of representation. Any such joinder, amendment or fresh process remains subject to limitation and all other applicable requirements of law. 3. It follows that the appeal succeeds. The order substituting Violet Muruka and Violet Mung’ang’a for the persons named as the 3rd and 9th defendants cannot stand. The proceedings against those two deceased persons must be struck out, while the suit against the surviving defendants remains unaffected by that defect. 4. As regards costs, the respondent’s error appears to have arisen from a lack of knowledge of the deaths rather than deliberate misconduct. The substantive land dispute also remains pending before the trial court. Those circumstances justify an order that each party bear its own costs of the application in the lower court. The appellants, having succeeded in the appeal, are entitled to the costs of the appeal. **DISPOSITION** 1. For the foregoing reasons, the Court makes the following orders: 2. The appeal is allowed. 3. The ruling and orders of the Senior Principal Magistrate delivered on 14 October 2025 are set aside to the extent that they authorized the substitution of the persons named as the 3rd and 9th defendants by Violet Muruka and Violet Mung’ang’a and granted consequential leave founded on that substitution. 4. The respondent’s notice of motion dated 16 July 2025 is dismissed. 5. The plaint and all consequential proceedings in Vihiga Magistrate’s Court Land Case No. E050 of 2024 are struck out only in so far as they purport to institute or maintain the claim against the persons named as the 3rd and 9th defendants, both of whom were deceased before the suit was instituted. 6. For the avoidance of doubt, the suit against the defendants who were alive when it was instituted remains unaffected by this judgment and shall proceed before the trial court in accordance with the law. 7. Nothing in this judgment shall be construed as determining whether the respondent may institute fresh proceedings against duly appointed representatives of the respective estates or seek their joinder in the existing suit. Any such course shall be determined upon a proper application and shall remain subject to limitation, proof of representative capacity, service and all other applicable requirements of law. 8. Each party shall bear its own costs of the application before the trial court. The appellants shall have the costs of this appeal. DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT VIHIGA THIS 27TH DAY OF JULY 2026. **P. MUSYIMI** **JUDGE** **In the presence of:** Court Assistant: Mr. Kevin Injene For the Appellants: Mr. Bagada advocate For the Respondent: Shuah Ayako Adori