Joseph Murori Nkanata (suing as Legal Administrator Ad Litem of the Estate of Nkanata Mwirichia - Deceased) v Stanley Gaiti & 5 others

The court held the suit was originated by the deceased, not the current Plaintiff, so the capacity objection to 'initiating' the suit was misconceived. Substitution was done by a Judge under Order 24 Rule 5 with the Defendants' participation and never challenged. The lost original file explained the defective proceedings, and the unpleaded locus standi issue could not be raised through the back door consistent with Article 50(1) and the Court of Appeal's guidance against ambush.

Order 7 Rule 5 of the Civil Procedure Rules commands in mandatory terms ('shall') that a defence and counterclaim be accompanied by an affidavit under Order 4 Rule 1(2), a list of witnesses, witness statements and documents. No verifying affidavit was found in the Defendants' bundle. Although the court has discretion to allow late filing, no application or explanation was tendered, so the Counterclaim was ex facie incompetent.

The deceased purchased 4 acres in 1973 under a sale agreement, paid the full consideration and entered possession. The agreement became void for want of Land Control Board consent; the vendor never rescinded or commenced recovery, so occupation became adverse. The 1st Defendant's defence conceded occupation, DW1 corroborated it, and the 1st Defendant's failure to testify attracted an adverse inference. Title was held on trust for the Plaintiff.

The confirmation order of 5th November 1992 limited the Grant to administration without disposal of land to new purchasers; no variation was shown. The Certificate of Confirmation, signed by the Deputy Registrar contrary to law and at variance with the Judge's order, was void ab initio, and every proceeding founded on it was incurably bad. The sales also offended lis pendens, the suit having been filed in 1985, and indefeasibility cannot sanitize illegality.