Mwambire & 10 others v Sadiq & another (Environment and Land Case E003 of 2023) [2025] KEELC 8537 (KLR)

due to being filed against a deceased individual. Additionally, the costs associated with the application and the suit are sought. 2. The application was reviewed based on written submissions as directed by the court. 3. I confirm receipt of submissions from Mr. Mugambi, learned counsel for the applicants, and Mr. Makworo for the respondents. The submissions significantly assisted the court in addressing the issues raised in the application. 4. Based on the materials and submissions presented before me, the issues I delineate for the court's consideration are whether to grant the orders requested in the application and who shall bear the costs associated with the application. 5. The main ground on which the application is based is that this suit was filed against a dead person, and the judgment and decree issued thereafter were also issued against a dead person. 6. The application is supported by two afidavits sworn by Shelina Tabassum Lalji Nurani (Shelina) and Abdul Wahid Mohamed Sadiq (Abdul). 7. The respondents opposed the application by submitting an afidavit sworn on September 17, 2025, by Safari Kazungu Mwambire, which stated that the 1st Respondent is alive and that the case can therefore proceed, and that the 2nd Respondent’s administrator can be substituted. 8. Shelina is the daughter of the late Mohamed Farooq Aziz Karamdin, also known as Mohamed Farooq Cocker, the 2nd Respondent. She made the current application as the administrator of her late father's estate, pursuant to letters of administration ad litem issued to her in Malindi High Court Cause No. E015 of 2025; in the Matter of the Estate of Mohamed Farooq Aziz Karamdin, also known as Mohamed Farooq Cocker (deceased). 9. Shelina stated that her father died on October 17, 2020, and she provided a copy of the death notification. She also mentioned that her late father was the registered owner of the land known as Parcel No. 52 Mambrui, Title Number CR 5535 (the suit land). Shelina further stated that she recently learned of a Gazette Notice No. 14208 issued by the Land Registrar in Mombasa on October 31, 2024, which indicates that a decree had been issued in this case for the transfer of her father’s land to the Applicants. The Land Registrar was therefore notifying that after sixty (60) days, he would issue a new title deed to the Applicants if no valid objections were raised, and her late father’s title deed would be considered canceled and invalid. 10. She then consulted her lawyer, who retrieved a copy of the judgment issued on September 18, 2024, from the Kenya Law website. After reviewing the judgment, she discovered that the Applicants filed this suit on February 17, 2023, by which time her father had already passed away. She further explained that her late father bought the suit land on December 15, 1981, together with Abdul, the 1st Respondent. However, on November 10, 1986, Abdul sold his shares in the land to her late father. 11. Abdul also swore an afidavit afirming Shelina’s allegations. He acknowledged that he acquired the suit land on December 15, 1981, in conjunction with the 2nd Respondent. Furthermore, he confirms that he transferred his shares in the suit land to the 2nd Respondent on November 10, 1986, and asserts that he holds no proprietary interest in the said land. Abdul also verified that he was not served with the Originating Summons or any subsequent legal process related to this matter; as a result, he was unaware of the proceedings. Additionally, he confirmed that the 2nd Respondent passed away on October 17, 2020, and that the property now legally belongs to the 2nd Respondent's descendants. 12. The Applicants filed a Notice of Preliminary Objection dated July 17, 2025 (PO) in response to the application. They argue that the notice of motion is not accompanied by a supporting afidavit, thus https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8537/eng@2025-11-26 2

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violating the provisions of the Civil Procedure Rules. They also state that the attached documents are inadmissible under the Evidence Act because they breach the Act. Additionally, they claim that the notice of motion does not specify the Applicant, which also contravenes the Civil Procedure Rules. Therefore, they argue that the notice of motion is misconceived, fundamentally fiawed, and should be struck out with costs. 13. Applicants clarify that an error during the application upload to the Court Tracking System (CTS) prevented the supporting afidavits from being uploaded. The error has now been corrected, and the afidavits have been uploaded to the CTS and served. They are now part of the court record, and the application is complete. 14. Applicants further contend that, to avoid confusion, the parties' primary designations in the originating summons were maintained in the application. This helped prevent confusion because the Applicants could respond to the application. 15. I need not dwell much on the PO as there is suficient correction of the documentation filed and the regularization of the record. 16. The respondents assert that it is a well-established legal principle that property held under joint tenancy confers full ownership upon the surviving registered owner, and the legal action proceeds solely against them. Conversely, in cases where the property is held under tenancy in common, the deceased’s estate remains a necessary party, and the personal representative of the deceased must be substituted pursuant to Order 24 of the Civil Procedure Rules. The Applicants/Respondents have provided an oficial search indicating that the suit property is registered in the names of both the 1st and 2nd Respondents. In paragraph 4 of the Replying Afidavit sworn by the 1st Respondent, he states that on November 10, 1986, he sold his shares to the 2nd Respondent. Nonetheless, no evidence has been submitted to substantiate these assertions. Such claims remain unverified and, given the circumstances, are inadmissible in law. 17. The Respondents argue that under the Torrens system, an oficial search should reveal the current registered owners of a property, and such a search provides conclusive evidence that the individuals listed are the legal owners. The search was conducted on January 4, 2023, just before the suit was filed. The 1st Applicant/Respondent has not explained why his name still appears in the register. The explanation is straightforward: he has never transferred his shares and remains the registered owner of Plot No. 52 - Mambrui. It is therefore clear that the 1st Applicant/Respondent still maintains a proprietary interest in the property as a tenant in common. It is thus submitted that he holds a separate, undivided share of the property and that this reality cannot be denied. 18. On another front, the Respondent avers that service of summons was undertaken correctly, and that upon failure to trace the Respondents in the OS, an application was made and allowed for substituted service. Hence, the issue of service should not arise in this matter. 19. Returning to the main issue, Mr. Mugambi correctly argues that Section 80 of the Civil Procedure Act authorizes this court to review its own previous decision, revisit it, and reassess it. This review authority allows the court to correct specific errors in the decision within established limits. 20. Order 45 Rule 1 of the Civil Procedure Rules, on the other hand, specifies the grounds on which an application for review can be made. These Rules establish the jurisdiction and scope of review, limiting it to the following grounds: discovery of new and important matter or evidence that, after exercising due diligence, was not within the knowledge of the Applicant or could not be produced by him at the time the decree was passed or the order was made; on account of some mistake or error apparent on the face of the record; or for any other suficient reason. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8537/eng@2025-11-26 3

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21. The application hinges on the death of the 2nd Respondent in the OS, a fact that was not disclosed to the court during the hearing. His demise is substantiated by the Proof of Death dated October 22, 2020, which confirms that Mr. Mohamed Farooq Cocker passed away on October 17, 2020, at Toronto General Hospital. This lawsuit was initiated on February 17, 2023, approximately 3 years after his death. 22. The Respondents /Applicants do not dispute the fact that the 2nd Respondent in the OS is dead and that the death occurred before the filing of the OS. 23. Conversely, Mr. Makworo contends that the 1st Respondent (in the Originating Summons) maintains a proprietary interest in the property as a tenant in common. Accordingly, he possesses a separate, undivided share in the property. He referred this court to the decisions in Mbui Mukangu v Gerald Mutwiri Mbui (2004) eKLR, In Re Estate of Dorcas Njambi Githinji (deceased) [2016] eKLR, Mukaz v Muthamia [1982] KLR 1, and Isack M’Inanga Kiebia v Isaaya Theuri M’Lintari & Another [2018] eKLR, which establish that in a tenancy in common, each party holds a distinct share that may be inherited or disposed of, unlike in joint tenancy where survivorship applies. When land is registered as tenancy in common, the deceased’s share does not pass to the surviving co-owner. Instead, it becomes part of the deceased’s estate to be distributed to the beneficiaries. Tenancy in common creates separate and distinct shares in land that do not merge upon death, thereby distinguishing it from joint tenancy. 24. Mr. Makworo is of the view that the 1st respondent (in the OS), having been properly served and retaining his undivided share, cannot have the entire proceedings annulled due to the death of the 2nd respondent (in the OS), as tenancy in common means each co-owner holds an undivided share that can be passed to heirs. 25. He contends that, as the 1st Respondent in the OS is alive, the case may proceed against him, given that he continues to be the registered owner of the suit property jointly with the deceased. The heirs of the 2nd Respondent in the OS should petition to be added as parties to these proceedings. The application to strike out the OS entirely is without merit and ought to be rejected. 26. As mentioned above, the 1st Respondent in the OS has completely disavowed ownership of the suit property, claiming he transferred his shares to the 2nd Respondent in the OS (deceased) long ago in 1986. 27. The principal issue in the current motion, as articulated by Mr. Mugambi, whom I concur with and am convinced by the cited judicial authorities, is now definitively established: when a lawsuit is initiated against a deceased individual, such a suit is inherently legally invalid because it is filed against no identifiable party, and consequently, 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). 28. The institution of this suit against a deceased individual is deemed invalid and possesses no legal efiect. 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.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8537/eng@2025-11-26 4

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29. Accordingly, the judgment dated September 18, 2024, must be invalidated because the Originating Summons was filed against a person who had been deceased for three (3) years, rendering it efiectively null. That judgment was granted in error, and it would cause a grave miscarriage of justice if that error is not corrected. See Mbigo Kadzo Tembo & another [supra]. 30. Since the 1st defendant, Abdul, confirmed that he has no proprietary interest in the suit land because he transferred his shares to the 2nd defendant on November 10, 1986, the entire suit cannot stand. 31. Based on the foregoing, the Notice of Motion dated June 24, 2025, is hereby granted to the extent that all ex parte proceedings, judgment, and decree issued in this matter are hereby set aside. Since the suit was a nullity, the originating summons dated September 17, 2023, is hereby struck out for having been instituted against a deceased individual. 32. Looking at the nature of the proceedings, each party will bear its own costs. DATED, SIGNED, AND DELIVERED ELECTRONICALLY IN MALINDI ON NOVEMBER 26, 2025. E. K. MAKORI JUDGE In the presence of: Mr. Mugambi for the Applicants Mr. Makworo for the Respondents Happy: Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8537/eng@2025-11-26 5

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