https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2951

Kimaru v County Government of Kilifi & 4 others (Environment and Land Case E032 of 2023) [2026] KEELC 2951 (KLR) (18 May 2026) (Ruling) Neutral citation: [2026] KEELC 2951 (KLR) Republic of Kenya In the Environment and Land Court at Malindi Environment and Land Case E032 of 2023 EK Makori, J May 18, 2026 Between Peter Kimaru Plaintiff and County Government of Kilifi 1st Defendant National Land Commission 2nd Defendant Naomi Mweri 3rd Defendant and Benjamin Adam Mure Mweri 1st Interested Party George Jefwa Mweri 2nd Interested Party Ruling 1.The Applicant’s Notice of Motion, dated September 16, 2025, seeks the following Orders:a.Spent.b.The applicants Benjamin Adam Mure Mweri and George Jefwa Mweri are joined as Interested Parties in this suit.c.The execution of the Judgment and Decree of this Court entered on March 23, 2025, be stayed pending the hearing and determination of this application inter partes.d.Pending the hearing and determination of this Application inter partes, a temporary injunction be issued against the Plaintiff, restraining the Plaintiff, himself, his servants or agents, or any person claiming through him, from selling, transferring, or charging the suit land, or from undertaking any further construction on the suit land, pending the hearing and determination of this Application.e.The Interested Parties shall be awarded the costs of this application. 2.The application is based on the grounds stated in the motion and is supported by the affidavit of the 1st interested party. The plaintiff has opposed the application through a replying affidavit sworn on September 22, 2025, and by the 1st Defendant's affidavit deposed on October 27, 2025. 3.The application was disposed of through written submissions. I acknowledge receipt of submissions from counsel for the parties with much gratitude, as they went a long way toward assisting the Court in resolving the issues raised in the application. 4.The issues I frame in this matter for determination are whether to join the Interested Parties in this proceeding, whether the judgment and consequential orders in place should be set aside, and who should bear costs. 5.Applicants argue that the main ground is that the 3rd defendant, Naomi Mweri, died on 13th November 2022, long before the institution of this suit on 17th May 2023. Subsequently, on 8th May 2025, the Interested Parties were appointed administrators of her estate. The Interested Parties, being the legal representatives of the deceased 3rd defendant, are entitled to move this Court for purposes of this application. 6.The applicants have averred that they are the children and legal representatives of the deceased 3rd defendant. Copies of her certificate of death and the Letters of Administration intestate have been attached to the supporting affidavit. 7.The court records show that the Plaintiff was granted leave to serve the summons to enter appearance upon the 3rd defendant by substituted service through advertisement in a daily newspaper of nationwide circulation after the Plaintiff was unable to locate the Defendant's physical address for service. The applicants have averred that they did not see the advertisement and were unaware of the proceedings in this suit until they saw the Judgment published on kenyalaw.org. 8.The Interested Parties submit that service by advertisement was ineffectual, because the 3rd defendant, being deceased, would not have been able to see the newspaper advertisement of the institution of this suit, however prominently displayed. The Court record also shows that the suit thereafter proceeded ex parte as against the 3rd defendant, and a Judgment and Decree was entered affecting the registration of the deceased in Land Title No. Kilifi/Jimba/174, without the deceased's participation or representation in the suit. 9.Although the suit was also against the 1st and 2nd Defendants, the principal cause of action was personal against the 3rd Defendant. As can be gleaned from the Judgment, it affected the 3rd Defendant's registration in the suit land. 10.The Judgment decreed the suit land in favor of the Plaintiff, and the Land Registrar was ordered to rectify the green card of the suit land and issue a new green card and title deed in favor of the Plaintiff. The decree also canceled a Gazette Notice dated 15th February 2023, issued by the 1st Defendant in favor of the 3rd Defendant. 11.The Interested Parties therefore submit that the suit and proceedings against the 3rd Defendant are void ab initio and a nullity because they were instituted after her demise. Accordingly, the summons to enter appearance and the subsequent Judgment against the 3rd Defendant are nullities and ought to be set aside. See Geeta Bharat Shah & four others v. Omar Said Mwatayari & another, Civil Appeal No. 46 of 2008 [2009] 3 KLR; Francis Salation Naikuni v Swakei Ole Naikuni & 7 others, Environment and Land Case No. 9 of 2023 [2025] KEELC 3064 [KLR]; C. Muttu v Bharath Match Works, AIR 1964 Kant 293. 12.Plaintiff on the other side contends that the suit filed in 2023 was primarily to correct the record, which the National Land Commission, the 1st Defendant, had mistakenly reallocated to Naomi Mweri via a gazette notice dated 15th February 2019. The National Land Commission failed to consider that the 1st Defendant herein had relinquished her right to this land in 1979, and that the plaintiff had, over the years, paid rates and even obtained a title deed in his name. They even acknowledge this in the now-set-aside Gazette Notice. 13.The Plaintiff contends that the Interested Parties lack the necessary locus standi, rendering their application to intervene and to set aside the judgment devoid of merit. Additionally, the Plaintiff argues that the Court has the discretion to refrain from setting aside the judgment in the interests of justice, as evidenced by the case of Esther Wamaitha Njihia & 2 Others v Safaricom Limited [2012] eKLR. 14.The Plaintiff further argues that the application has no merit and does not raise any triable issues. For starters, Naomi Mweri relinquished her rights to the Plaintiff in 1979, and even at her death, she had no right over the land. It therefore does not form part of her estate. 15.The Plaintiff further submits that events have overtaken the application because the land has already been subdivided and transferred to another company. The Plaintiff has actively begun construction and evicted third parties who purchased the land from fraudsters. The land now has new title numbers. The Interested Parties have not shown this court what interest they have in the suit property and how it came to be that they never pursued the suit land for all those years. 16.In the affidavit of BRIAN IKOL, Director of Legal Affairs and Dispute Resolution at the National Land Commission (NLC), he deposes that the review process for the suit land was conducted during public inquiries and investigations held at Kilifi Jimba on 9th October 2018 and 12 October 2018, pursuant to Section 14 of the National Land Commission Act, 2012, and the National Land Commission (Review of Grants and Dispositions of Public Land) Regulations, 2017 (Legal Notice No. 71 of 2017). The review process for the suit land was conducted during public inquiries and investigations held at Kilifi Jimba on 9th October 2018 and 12 October 2018, pursuant to Section 14 of the National Land Commission Act, 2012, and the National Land Commission (Review of Grants and Dispositions of Public Land) Regulations, 2017 (Legal Notice No. 71 of 2017). 17.That on October 9, 2018, a son of the 3rd Defendant appeared before the Commission, claiming ownership of land. A representative of the Plaintiff also appeared before the Commission. Both were advised to prepare ownership documents as proof of ownership. See copies of the Hansard for October 9. 18.That the current application by the Proposed Interested Parties, seeking to join this suit, to stay execution of the Judgment and Decree dated 23rd March 2024 (issued on 16th December 2024), and to obtain a temporary injunction, is an abuse of the court process because it seeks to relitigate issues already determined by the Defendant in a quasi-judicial process and by this honorable court. 19.The AG, in submission and in opposing the application, stated that, like the Plaintiff, the court has wide discretion to set aside a judgment based on the interests of justice, as ordained in Order 12 Rule 7 of the Civil Procedure Rules, and the decisions in Shah vs Mbogo (1979) EA 116, quoted with approval in the case of John Mukuha Mburu v Charles Mwenga Mburu [2019] eKLR and Simon Thuo Mwangi v Unga Feeds Limited [2015] eKLR. 20.The AG believes this application has been brought too late and should not be entertained, citing the decision in Afapack Enterprises Limited v Punita Jayant Acharya (Suing as the Administrator of the Estate of the late Suchila Anatrai Raval) [2018]. 21.Regarding joinder of the Interested Parties in these proceedings, it is to be taken that this matter has already been heard and judgment delivered by this Court on December 16, 2024. It is reported as Kimaru v Land Registrar Kilifi & 2 others [2024] KEELC 14055 (KLR). 22.The Court, in its decision, traced the history of the suit property and made these findings:“From the records in the Land Registry, it is evident that Plaintiff has been the lawful owner of the suit property since 1980, and the 1st Defendant erroneously re-allocated the land to the 3rd Defendant. Yet, the 3rd Defendant had already sold her interests to the Plaintiff. The Plaintiff had already settled any dues to the land and obtained titles in his name. The defense by the 2nd defendant, paragraph 4, confirms that this was an error in allocating the land to the 3rd Defendant. Further, these transactions occurred in the 1980s, and the Plaintiff complied with all applicable laws in obtaining title to the land. The land is registered to the Plaintiff, and there is no contention. The Plaintiff has provided all the documents and receipts showing the payment of the land rates, which puts him in a position of the privilege of owning the land. The plaintiff obtained title to the land in 2000 before the National Land Commission decided to reallocate it to the 3rd Defendant. A certificate of title had already been issued in 1982. 7.Therefore, as the rightful and lawful owner of the land, the Plaintiff should be allowed to enjoy it fully, as is his entitlement. 8.Having proved that he is the lawful owner of the land, the next step would be to regularize the documents to ensure his rights and protect the plaintiff. The 1st Defendant has no contention that it erroneously re-allocated Kilifi/Jimba/174 to Naomi Mweri. After this reallocation, the green card seems to be missing from the Land Registry. From the defendant's list of documents, this land was allocated to Naomi Mweri on 12th May 1979. Later, in 1980, it was transferred to the Plaintiff, and in 1982, a certificate of title was issued in favor of the Plaintiff. The records provided are enough to reconstruct the green card and correct any mistakes made by the 1st Defendant. 9.This Court, therefore, directs the Land Registrar Kilifi to amend the register appropriately, reconstruct the green card, and insert the name of the Plaintiff as the proprietor of the suit property in place of the 3rd Defendant, who long relinquished her rights to the Plaintiff as enumerated above. 23.By the time the Plaintiff brought this suit, the 3rd Defendant had died. The administrators have resurfaced in the name of the Interested Parties, having taken letters of administration concerning the estate of the deceased 3rd Defendant. 24.I concur entirely with the submissions of the Interested Parties that a judgment or proceeding against a deceased individual is null and void, as affirmed in the case they referenced, Geeta Bharat Shah & 4 Others V Omar Said Mwatayari & Another [2009] KECA 126 (KLR):“In the result, as Bharatkumar Nathalal Shah was already dead by the time the suit was filed, we hold the view that the suit was a nullity and Mr.Oddiaga, is with respect right in conceding the appeal in respect of him on that score. We see no merit in directing that he be allowed to file а defence as he is not there to do so and the administrators to his estate cannot in law take over the matter as it was filed after he was already dead.” 25.In Naikuni v Naikuni & 7 others; Manyuele (Applicant) [2025] KEELC 3064 (KLR), the Court held as follows:“It is trite that a dead person cannot be sued, and technically, a suit filed against a deceased person is invalid and a nullity from inception. This court was referred to the case of Manyange (Deceased) v TG (Minor suing through her mother and next friend WMG) (Civil Appeal E005 of 2022) [2024] KEHC 1083 (KLR) (7 February 2024) (Ruling), which quoted with approval the Indian case of C. Muttu v. Bharath Match Works AIR 1964 Kant 293, where the court observed as follows;“If he (defendant) dies before the suit and a suit is brought against him in the name in which he carried on business, the suit is against a dead man and it is a nullity from its inception. The suit being a nullity, the writ of summons issued in the suit by whomsoever accepted is also a nullity. Similarly, an order made in the suit allowing amendment of plaint by substituting the legal representative of the deceased as the defendant and allowing the suit to proceed against him is also a nullity. It is immaterial that the suit was brought bona fide and in ignorance of the death of such a person.” 26.It follows, then, that the suit against the 3rd Defendant from the beginning was invalid and void ab initio. 27.Having found that way, a Court of law, by all means, is not supposed to sanction an illegality. What remains to consider is whether, after I declare the current proceedings and have the Interested Parties joined in these proceedings, the next step is to proceed. They will only come to the proceedings as Interested Parties and will not be active participants in the suit. 28.The plaintiff and the 1st and 2nd defendants have argued that even if the Interested Parties are allowed to join these proceedings late in the day, nothing much will change, as elaborated in this Court's judgment. The 3rd defendant, now deceased, had long transferred her interest in the suit property in 1980, with title issued to him in 2000, an error that this suit was to correct, namely the erroneous determination that the title was issued to the deceased 3rd defendant, oblivious of the Plaintiff's interest. In her lifetime, she had transferred her interest in the suit property to the Plaintiff. 29.The Plaintiff then avers that after the judgment of this Court, the title document has long since changed hands to third parties, and squatters found on the land are in the process of being evicted. There is even a suit – Malindi ELC No. 098 OF 2025. 30.In Kenya, the addition of an Interested Party in civil litigation permits non-parties with a direct and identifiable legal interest to be incorporated into a lawsuit. Under the provisions of Order 1 Rule 10(2) of the Civil Procedure Rules, the Court assesses joinder based on criteria such as necessity, potential prejudice, and the particular interests of the party involved. 31.The Supreme Court of Kenya, in the case of Francis Karoki Muruatetu & Another vs. Republic & 5 Others (2016) eKLR, set out the key elements to consider in an application to join an Interested Party as follows:“a.The Personal interest or stake that the party has in the matter must be set out in the application. The Interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral.b.The prejudice to be suffered by the intended Interested Party in case of non-joinder, must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote.c.Lastly, a party must, in its application, set out the case and/or submission it intends to make before the court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the court.” 32.In light of these principles as they apply to the present case, even if it is conceded that the proceedings against the 3rd Defendant were null and void, the Interested Parties have not demonstrated any implications arising from the joinder, given that the land has already been transferred. It is my considered opinion that the most appropriate course of action for the Interested Parties is to institute their own action, articulate their case, claim ownership of the property, and challenge the current proceedings by asserting invalidity and nullity, noting that the title has already changed hands and that there are other proceedings to address the issue of squatters on the same property. 33.Having reached that conclusion, I need not address the other issues and prayers sought by the Interested Parties, as I have declined the prayer for joinder. 34.In conclusion, the application dated September 16, 2025, is hereby dismissed with no order as to costs. DATED, SIGNED, AND DELIVERED ELECTRONICALLY IN NYERI ON THIS 18TH DAY OF MAY, 2026.E. K. MAKORIJUDGEIn the presence of:Mr. Shujaa for the Interested PartiesMs. Kagori for the PlaintiffKendi: Court AssistantIn the absence of:Mr. Kiilu for the 1st DefendantMr. Munga for the 2nd Defendant