Arthur v Awale & another (Environment and Land Appeal E007 of 2024) [2025] KEELC 7693 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out an entire appeal because it was filed against a person who had already died before filing.
What this practically means
#Executive summary
#Key legal issues
#Competency of an appeal filed against a deceased person without substitution
The appeal against the 1st respondent, who died in December 2023 before the appeal was filed on 21/3/2024, is null and void; Order 24 CPR does not assist because the death predated the appeal.
The court held that an appeal is a suit under section 2 of the Civil Procedure Act. Where the defendant dies before the suit is filed, the suit is against a dead person and a nullity from inception, citing C. Muttu v Bharath Match Works as adopted in Viktar Maina Ngunjiri. Substitution under Order 24 applies only where death occurs during the pendency of proceedings, which was not this case.
Whether any appeal lies against the 2nd respondent
No appeal could lie against the 2nd respondent regarding the refund, as the refund order was made solely against the 1st respondent.
Order 30(c) of the trial judgment directed only the 1st plaintiff to refund the purchase price. Although the money was deposited by the 2nd respondent with counsel's office, the court held the decretal obligation remained that of the 1st respondent regardless of who paid on her behalf, leaving no live appeal against the 2nd respondent.
Claims for interest, damages and compensation for improvements
Not determined, as these grounds were dependent on issues 1 and 2 which failed.
The court expressly made issues 3 and 4 dependent on the competency findings. Having found the appeal against the 1st respondent a nullity and no appeal lying against the 2nd respondent, there was no basis to entertain the substantive grounds on interest, compensation for improvements or costs.
Legal principles established
#- A suit filed against a person already deceased is a nullity from inception, and Order 24 of the Civil Procedure Rules cannot cure a suit commenced against a party who died before filing.
- An appeal against a deceased respondent against whom no decretal obligation lies cannot shift liability to a co-respondent who merely deposited money on her behalf.
Court orders
#- 1.The appeal is struck out in its entirety
- On appeal from
- Bondo Senior Principal Magistrates' Court
- Environment and Land Case E014 of 2020
- Jurisdiction invoked
- First appellate jurisdiction over subordinate court under Article 165 and the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Arthur v Awale & another (Environment and Land Appeal E007 of 2024) [2025] KEELC 7693 (KLR)", Case Analysis (2025). Environment and Land Case E014 of 2020 (Bondo SPMC), Appeal. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7693/eng@2025-11-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.