'1. The application dated July 21, 2025, primarily sought orders that all ex parte proceedings herein be set aside, and thereafter, the entire suit be struck out, as it was instituted against a dead person.
2. The application was supported by the attached affidavit of the applicant, Wilson Nyangala Mighulo, on the same date.
3. The court initially instructed the Deputy Registrar of this court to visit the suit property and identify who was in occupation.
4. I did not see a response from the respondent at the time I was making this ruling.
5. This ruling is based on the reasons outlined in the body of the application, the supporting affidavit by the applicant, and the report by the Deputy Registrar of this Court.
6. In her report dated October 16, 2025, the Deputy Registrar of this court determined that:
“There is currently no occupation of the suit property by any party.”
7. In light of the legal principles established in cases such as Geeta Bharat Shah & 4 Others v Omar Said Mwatayari, the court finds that filing a suit against a deceased person, as in this case against Juma Kijoja Rashid, who died on May 15, 1993, renders the proceedings legally invalid and null.
8. The immovable property was transferred to him by the administrators of the late Juma Kijoja Rashid in 2009, pursuant to an agreement dated July 22, 2009. Since that acquisition, he has maintained peaceful occupancy until May 16, 2025, when the plaintiff unlawfully entered the property, engaged in wanton destruction, and demolished the perimeter wall, the semi-permanent residence, and the applicant''s crops.
9. The lawsuit filed by the plaintiffs against a deceased defendant is legally null and void, as the court recognizes that legal proceedings against a deceased person lack validity and fairness.
10. The issue I present for this court''s decision is whether this suit and any related proceedings are null and void, and who should be responsible for costs.
11. According to the affidavit supporting the Originating Summons (OS), the plaintiffs submitted photographs demonstrating substantial developments on the suit property, notably including permanently constructed and semi-permanently constructed residential structures.
12. But when the Deputy Registrar of this court visited the suit property, there was no such development.
13. The law regarding the commencement of legal proceedings against a deceased individual has now been conclusively established: when a lawsuit is filed against a deceased person, such a suit is inherently legally invalid because it is initiated against a non-identifiable party, and therefore, no legitimate claim exists. Refer to Geeta Bharat Shah & 4 Others v Omar Said Mwatayari & Another [2009] KECA 126 (KLR) and Mbigo Kadzo Tembo & another v Vincent Sebastian D’costa [2020] KEELC 799 (KLR).
14. The institution of this suit against a deceased individual is deemed invalid and possesses no legal effect. As Lord Denning articulated in the renowned case of MacFoy v United Africa Co. Ltd (1961) 3 All ER 1169:
“If an act is void, then it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”
15. Accordingly, the proceedings undertaken thus far must be declared invalid since the OS was filed against an individual who had been deceased for thirty-two years, thereby rendering the process effectively null. The continuation of these proceedings is flawed, and failure to rectify this error would result in a significant miscarriage of justice. See Mbigo Kadzo Tembo & another [supra].
16. As a result, all proceedings herein are annulled, and the OS is struck out with costs.
Dated, signed, and delivered electronically in Malindi on November 26, 2025.
E. K. MAKORI
JUDGE
In the presence of:
Mr. Ndambuki for the Plaintiff
Happy: Court Assistant
In the absence of:
Mr. Egunza for the Respondents.
'
2. The application was supported by the attached affidavit of the applicant, Wilson Nyangala Mighulo, on the same date.
3. The court initially instructed the Deputy Registrar of this court to visit the suit property and identify who was in occupation.
4. I did not see a response from the respondent at the time I was making this ruling.
5. This ruling is based on the reasons outlined in the body of the application, the supporting affidavit by the applicant, and the report by the Deputy Registrar of this Court.
6. In her report dated October 16, 2025, the Deputy Registrar of this court determined that:
“There is currently no occupation of the suit property by any party.”
7. In light of the legal principles established in cases such as Geeta Bharat Shah & 4 Others v Omar Said Mwatayari, the court finds that filing a suit against a deceased person, as in this case against Juma Kijoja Rashid, who died on May 15, 1993, renders the proceedings legally invalid and null.
8. The immovable property was transferred to him by the administrators of the late Juma Kijoja Rashid in 2009, pursuant to an agreement dated July 22, 2009. Since that acquisition, he has maintained peaceful occupancy until May 16, 2025, when the plaintiff unlawfully entered the property, engaged in wanton destruction, and demolished the perimeter wall, the semi-permanent residence, and the applicant''s crops.
9. The lawsuit filed by the plaintiffs against a deceased defendant is legally null and void, as the court recognizes that legal proceedings against a deceased person lack validity and fairness.
10. The issue I present for this court''s decision is whether this suit and any related proceedings are null and void, and who should be responsible for costs.
11. According to the affidavit supporting the Originating Summons (OS), the plaintiffs submitted photographs demonstrating substantial developments on the suit property, notably including permanently constructed and semi-permanently constructed residential structures.
12. But when the Deputy Registrar of this court visited the suit property, there was no such development.
13. The law regarding the commencement of legal proceedings against a deceased individual has now been conclusively established: when a lawsuit is filed against a deceased person, such a suit is inherently legally invalid because it is initiated against a non-identifiable party, and therefore, no legitimate claim exists. Refer to Geeta Bharat Shah & 4 Others v Omar Said Mwatayari & Another [2009] KECA 126 (KLR) and Mbigo Kadzo Tembo & another v Vincent Sebastian D’costa [2020] KEELC 799 (KLR).
14. The institution of this suit against a deceased individual is deemed invalid and possesses no legal effect. As Lord Denning articulated in the renowned case of MacFoy v United Africa Co. Ltd (1961) 3 All ER 1169:
“If an act is void, then it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”
15. Accordingly, the proceedings undertaken thus far must be declared invalid since the OS was filed against an individual who had been deceased for thirty-two years, thereby rendering the process effectively null. The continuation of these proceedings is flawed, and failure to rectify this error would result in a significant miscarriage of justice. See Mbigo Kadzo Tembo & another [supra].
16. As a result, all proceedings herein are annulled, and the OS is struck out with costs.
Dated, signed, and delivered electronically in Malindi on November 26, 2025.
E. K. MAKORI
JUDGE
In the presence of:
Mr. Ndambuki for the Plaintiff
Happy: Court Assistant
In the absence of:
Mr. Egunza for the Respondents.
'