Bandari & another v Gilani
The bottom line
#Kenya's Environment and Land Court in Mombasa stopped a judgment against a deceased man's estate but refused to kill the land dispute outright.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Notice of Motion application dated 22nd February, 2023 by the Applicant has any merit whatsoever
- 2.Whether the parties herein are entitled to the reliefs sought
- 3.Who will bear the Costs of the application
Key legal issues
#Whether judgment could be arrested after the close of the Plaintiffs' case
The Court granted the arrest of judgment, invoking its inherent powers and the constitutional rights to fair hearing and natural justice
The Court held that although no specific provision governs arrest of judgment in the ELC, its inherent powers under Sections 1, 1A, 3 and 3A of the Civil Procedure Act and Articles 25(c), 47 and 50(1) and (2) of the Constitution justify the relief. The Applicant showed a legitimate interest as legal representative of the deceased's estate, and the Court granted the benefit of doubt in the interest of justice despite unexplained delay.
Whether a suit filed against a deceased person is a nullity that must be struck out
The Court declined to strike out the suit, distinguishing the general rule that a suit against a dead person is a nullity
While concurring with the authorities that suing a dead person ordinarily renders a suit a nullity, the Court gave five reasons to differ: the Plaint disclosed a reasonable adverse possession cause of action; the property was held as tenants in common with a surviving co-owner retaining a stake; the Applicant failed to attach the Probate Will or schedule of assets to prove the deceased's ownership; service was properly effected by substitution and the estate was aware of proceedings; and striking out is a draconian discretionary remedy exercised only in plain cases.
Whether the co-joint owner should be joined
The Court directed joinder of Alnoor Ismail Thobani as 2nd Defendant with substituted service
Because the title deed showed the property held as tenants in common in equal undivided shares, the Court found it imperative that the co-owner be joined to enable complete adjudication of all questions, requiring amendment of the Plaint under Order 8 Rule 3 and Order 1 Rule 10(4) of the Civil Procedure Rules.
Legal principles established
#- A suit filed against a person already dead is ordinarily a nullity ab initio, but the jurisdiction to strike out pleadings is discretionary and must be exercised judicially; where a reasonable cause of action is disclosed, the suit should proceed to trial
- Upon the death of a tenant in common, the deceased's share devolves to their estate; the absence of the doctrine of survivorship means the suit does not merely abate
Court orders
#- 1.Notice of Motion dated 22nd February 2023 partially allowed: order granted arresting delivery of Judgment scheduled for 23rd February 2023 pending hearing and determination of the suit
- 2.Prayer seeking to have the suit struck out disallowed
- 3.1st and 2nd Plaintiffs granted leave of 21 days to amend the Plaint by joining Alnoor Ismail Thobani as 2nd Defendant
- 4.Plaintiffs directed to effect substituted service upon the 2nd Defendant by publication in the Daily Nation newspaper
- 5.1st and 2nd Defendants granted leave of 21 days to comply with Orders 6, 7 and 11 of the Civil Procedure Rules
- 6.Plaintiffs granted leave of seven days to file and serve further lists of documents and witness statements
- 7.Matter to be heard on 5th June 2024; mention on 4th March 2024 for compliance and pre-trial conference under Order 11
- 8.1st and 2nd Defendants at liberty to invoke Section 146(4) of the Evidence Act to recall any Plaintiff witness for cross-examination and re-examination
- 9.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution; Sections 3, 13 and 19 of the Environment & Land Court Act, No. 19 of 2011; inherent powers under Sections 1, 1A, 3 and 3A of the Civil Procedure Act
Relief refused
#Striking out of the Plaint and dismissal of the suit as a nullity ab initio for having been filed against a deceased person
The Plaint discloses a reasonable cause of action in adverse possession; striking out would be draconian and drive the Plaintiffs from the seat of justice; a co-joint owner retains a stake in the property
Costs
Each party to bear their own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
That the Notice of Motion application dated 22nd February, 2023 by the Applicant herein be and is hereby partially allowed
The prayer seeking to have the suit struck out be and is hereby disallowed.
That each party to bear their own costs.
Striking out a pleading is a draconian act, which may only be resorted to, in plain cases
Unless the estate was sued, the suit against the deceased is nullity ab initio.
Issues in the judgment
#Only four of the promised 'five (5) broad rationale' reasons are articulated; the fourth is missing
Court states only the High Court can determine arrest-of-judgment motions yet grants the order itself
Supporting affidavit dated inconsistently as 22nd, 21st and 27th February 2023 in different passages
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bandari & another v Gilani", Case Analysis (2023). Environment & Land Case 106 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22014/eng@2023-12-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.