Mbekо v Sillas (Environment and Land Case E009 of 2024) [2026] KEELC 5369 (KLR)

II. The case by the Defendant/Applicant 3. The Defendant/Applicant sought for the following orders:a) Spent. b) Spent. c) That pending the hearing and determination of this application, the Applicant, their agents, employees, assign and/or any other person acting or claiming on their behalf be restrained from further encroaching and/or trespassing, developing, farming, transferring, selling, leasing, charging or in any other manner whatsoever interfering with the piece of land known as Parcel No Kwale/Ng'ombeni ADJ/714. d) That all Ex - Parte proceedings, judgment dated 24th July, 2025 and decree reviewed and set aside. e) That upon setting aside of the Ex - Parte proceedings, Judgment dated 24th July, 2025 and decree, the Originating Summons dated 14th August, 2024 be struck out for having been instituted against a dead person. f) That Costs of the application and the suit be provided for. 4. The application was premised upon the following grounds as listed on its face;

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a. There was an Ex - Parte Judgment that was entered against the Defendants on 24th July, 2025. b. This suit was initiated on 29th August, 2024. c. The Respondent died on 23rd March, 1999. d. A suit filed against a dead person is null and void. e. The Estates of the Respondent were never served with the Originating Summons and any subsequent court process. They were therefore not aware of this suit. f. In any event, the estate of the Respondent know for a fact that the piece of land known as Parcel No Kwale/Ng'ombeni ADJ/714 (Hereinafter referred to as “The Suit Land”) was not inhabited by squatters and thus the suit was purely founded on lies. g. It was fair and just for this application to be allowed. 5. The application was further premised on the testimonial facts and averments made out by RICHARD KATISO together with annextures annexed thereto. He averred as follows that:a) He was the Son to the late David Katiso Sillas, who was sued in the case as Respondent.

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b) His father died on 23rd March, 1999. Thus, the application was brought in the deponent’s capacity as the duly appointed Legal Administrator of the Estate of his late father pursuant to the Grant Letters of administration issued to him in Mombasa High Court Cause No 123 of 2000; In the matter of the Estate of Silas David Katiso (Deceased). c) His late father is the registered owner of the piece of land known as Parcel No Kwale/Ng'ombeni ADJ/714 - the suit land. As per a copy of the Official Search in his father's name which he attached to the affidavit. d) As a family they had recently become aware of a Judgment delivered by this Honourable Court to the effect that a decree had been issued in this suit for the transfer of their father's land to the Applicant. e) The Land Registrar Kwale had already been issued with the executed transfer instruments and could be in the process of cancelling the title in the Respondents' name and hence the prayer for stay of execution of the Judgement which was issued by the court. f) Upon reading the Judgment the Defendant/Applicant got to learn that the Applicants initiated this suit on 29 th August, 2024. His late father had died by then.

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g) As already stated, he died on 23rd March, 1999. That the suit was thus filed against a dead person and the same was bad in law because it was filed against nobody and there was simply no valid suit. h) Therefore the Judgment delivered on 24 th July, 2024 must collapse given that the Originating Summons was filed against a person who had been dead for three (3) years and was therefore for all intents and purposes, a nullity. i) The Judgment was issued in error and there would be a great miscarriage of justice if that error was not corrected. j) Also that the suit land in question was actually not inhabited as alleged by the Applicant. k) The deponent attached a Surveyors Report to demonstrate the proper position of the land in question and prayed that the application is allowed as prayed. III. The case by the Plaintiff/Respondents 6. As indicated above, the Plaintiff/Respondent opposed the application vide a Replying Affidavit sworn on 27 th November 2025. The deponent stated as follows that:a) He entered the suit property from the year 2000 and had openly cultivated and lived on the suit property thereon quietly and peacefully without interference.

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b) In the year 2024 he conducted a search over the property and which revealed that the Defendant was the registered owner of the said land. c) The Respondent stated that since he was unaware of the Applicant’s whereabouts, he contacted one Mwinyi Kombo Omari Mwafungiza the village chairperson to get any form of contact for the Applicant but efforts to trace him were futile. d) Summons to enter appearance in the matter were made by substituted service vide publication of an advertisement in one of the local newspaper – “The Daily Nation” newspaper dated 27th November, 2024. e) The Respondent stated that he was not aware of the death of David Katiso Sillas and had no reasonable means of discovering this information he had been in occupation of the suit property for over 25 years and that the property had no caution placed over it at any given time. f) Hence, the Defendant/Applicant herein had no locus to approach this court as he had not annexed any grant of representation over the estate of the deceased. g) Also that the rights of the Applicant over the suit property had been extinguished for the fact that he had not

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pursued any ownership over the property for the last 25 years. h) According to the Respondent, his claim over the suit property was for adverse possession, that he was therefore correct in suing the deceased as he was the registered owner of the suit property. i) The Respondent stated that he had actual possession of the suit property and held a valid title to it. j) In response to the survey report presented before court by the Applicant, the Respondent stated that it contradicted the actual position of occupation on the suit property. k) The photos attached did not show the extend of the 13 Acres occupation as he the Respondent had built his house and cultivated on approximately 2 acres and grazes on the remaining 11 acres. l) The court was urged to dismiss the application as prayed as it had not met the required threshold for setting aside Judgement. IV. Submissions 7. On 9th December, 2025, while Counsels for the Parties were present in Court, they were directed to have the application disposed of by way of written submissions.

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8. Pursuant to that, all Plaintiff/Respondent’s February, 2026 the parties submissions while the complied. were dated The 6 th Defendant/Applicant’s submissions are dated 14th January, 2026. 9. The court has considered the submissions on record while proceeding to render its verdict on 30th July, 2026 accordingly. V. The Written Submissions by the Defendant/Applicants 10. The Defendant/Applicant through the Law firm of Messrs. F Kangogo & Company advocates filed submissions on behalf of the Applicant. Mr. Kangongo Advocate commenced his submissions by providing the Court with a brief background of the matter. The Learned Counsel submitted that the Respondent was being untruthful in stating that he was unaware of the death of David Katiso Sillas. He informed Court that the deceased was a wellknown public servant and very vocal. The Counsel averred that his death was public information. The Counsel stated that ignorance of the death was

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nevertheless not an excuse to sanitise the fact that the suit had been wrongfully instituted. 11. The Applicant stated that P & A form 41 vested an individual with the requisite authority to institute and defend suit on behalf the estate of a deceased for purposes of preserving the estate. That the provision of Sections 79 and 82 of the Law of Succession Act, Cap. 160 was clear on this legal position. To buttress on this legal point, reference was made to the holding of the court in the case of:- “Troustik Union International & Another Versus - Jane Mbeyu & Another [1993] eKLR”. 12. The Learned Counsel maintained that the Respondent was not in occupation of the suit property and has never been in occupation of the same. That in a clear contradiction of what had been stated in the Originating Summons instituting the suit where the Plaintiff/Respondent stated that he was in occupation of the whole suit parcel, the Plaintiff/Respondent had now stated that he only occupied 2.4 acres of the property. 13. Further reference was made to the provisions of Section 80 of the Civil Procedure Act, Cap. 21 which permits the court to review its own decision so as to correct certain error apparent in the face of it. That the provision of

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Order 45 Rule 1 of the Civil Procedure Rules, 2010 sets out the grounds upon which an application for review may be made. That the death of David Katisso Sillas was evident as per the death certificate. 14. In conclusion, the Learned Counsel asserted that a suit against a deceased could not survive and hence sufficient grounds had been made for review and setting aside of the judgement. Court was urged to allow the application. VI. The Written Submissions by the Plaintiffs/Respondents 15. The Law firm of Messrs. Chimera Kamotho & Company Advocates filed submissions dated 6 th February, 2026 on behalf of the Respondent herein. M/s. Kimani Advocate commenced the submissions through provision of brief facts of the matter. The Learned Counsel identified two (2) issues for its determination. These were:a. Whether the Defendant/Applicant’s application was merited and b. Who should bear the costs 16. On the first issue for determination, The Learned Counsel submitted that the decree emanating from the disputed Judgement had already been executed. Therefore, there was nothing to stay as the subject matter had already

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been dispatched. It was further submitted that the Applicant had not satisfied to the court the nature of the substantial loss that it was bound to suffer if stay of execution was not granted. Reliance on this was placed on the case of:- “Yakub - Versus - Wesonga [2024] KEELC 6811[KLR]”. 17. It was submitted that the Applicant had also not made a case for grant of injunctive orders as sought. That prior to the Judgement the Respondent was in occupation and use of the suit property and that he could not be now denied its use. The Respondent submitted that he stood to suffer irreparable harm which could not be atoned by damages in the event that the orders sought were not granted. Further that the Applicant had been indolent for the past 25 years in not following up on the suit property and should not be allowed to now claim for the suit land. That the Applicant would had made effort to register a succession cause and caution over the suit property after the death of the deceased but failed to do so and could not now run and seek for the court’s aid. 18. The Respondent maintained that a case had been made for adverse possession and that the contested judgement was merited. The Respondent submitted on the second

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issue for determination and stated that he be awarded the costs. VII. Analysis and Determination 19. This Honourable Court has keenly considered the pleadings in form of the Notice of Motion application, the response thereto, the written submissions by both parties, the cited authorities, the relevant provisions of the Constitution of Kenya, 2010 and the Statutes. 20. In order to arrive at an informed, reasonable and just decision, I have framed the following three (3) salient issues for determination; a) Whether Judgement delivered on 24 th July, 2025 ought to be reviewed and/or set aside based on the grounds brought out from the Notice of Motion application dated 27th October, 2025. b) Whether the parties are entitled to the reliefs sought. c) Who bears the costs of the application? ISSUE No. a). Whether the Judgement delivered on 24th July, 2025 ought to be reviewed and/or set aside based on the grounds brought out from the Notice of Motion application dated 27th October, 2025 21. Under this sub - heading, the Honourable Court will seek to interrogate whether the Defendant/Applicant has made a case for grant of the orders sought in the application

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subject of this ruling. In a nutshell, the substratum of the matter is to set aside a Judgement granted in a civil suit initiated through filing of an Originating Summon by supposedly a dead person. The main issue being can such a suit survive the tenets of law?. 22. However, before delving further into the discussion with regards to the first issue for determination, I will digress a bit and address an issue as raised by the Plaintiff/Respondent that the Defendant/Applicant did not have the locus to institute the suit herein. In my understanding, the Plaintiff/Respondent seemed to imply that without a full Grant Letters of Administration to the Estate of a Deceased person, a party cannot institute a suit for or against the estate of a deceased person. I wish to not belabour much on this issue, the Applicant has referred to himself as the legal representative of the estate of the deceased. 23. The term “Legal Representative” is defined under the provision of Section 2 of the Civil Procedure Act, Cap. 21 as- “a person who in law represents the estate of a deceased person, and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.”

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24. I have sought refugee from a decision where this legal point was deliberated. This was the of:- Rajesh Pranjivan Chudasama – Versus - Sailesh Pranjivan Chudasama [2014] eKLR the Court of Appeal held that:“...a litigant is clothed with locus standi upon obtaining a limited or full letters of administration in cases of intestate succession...” 25. Thus, this being a Court of record, in the instant case, the Defendant/Applicant availed a Limited Grant Ad Litem demonstrating the capacity in which he was bringing the suit before court. Clearly, therefore, the issue of locus on the part of the Defendant/Applicant is settled. 26. Moving further to the second issue. It is trite that a decision on whether to set aside or not set aside an Ex Parte Judgement is discretionary, and the said discretion is intended to be exercised so as to avoid injustice, and hardships, resulting from accident, inadvertence or excusable mistake or error, but is not designed to aid a party who had deliberately sought to obstruct justice, and has deliberately delayed the expeditious disposal of a matter. See the cases of “Shah – Versus – Mbogo (1967) EA 166” and “Berlin Equipment Limited & and other v Tata

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Africa Holdings (K) Limited [2026] KECA 100 (KLR), the Court of Appeal held as follows: “It is common ground that the jurisdiction under Order 10 Rule 11 is discretionary. The rule empowers the court to set aside or vary a default Judgment “upon such terms as are just.” The principles guiding the exercise discretion of that exists discretion are to injustice avoid well settled. or The hardship resulting from accident, inadvertence, or excusable mistake, and is not intended to assist a party who has deliberately sought to obstruct or delay the course of justice, as articulated in the celebrated case, Shah – Versus - Mbogo (1967) EA 166. Where a default judgment is regular, the court ordinarily considers whether the defendant has shown a defence on the merits. A defence on the merits does not mean one that must succeed; it suffices that it raises a triable issue deserving of adjudication at a trial, as stated by this Court in Patel – Versus - E.A. Cargo Handling Services Limited (1974) EA 75 and reiterated in Tree Shade Motors Ltd – Versus - D.T. Dobie & Another (1995– 1998) 1 EA 324.17.” 27. Ideally, the concept of setting a side Judgement is governed under the provision of Order 10 Rule 11 of the Civil Procedure Rules, 2010 provides as follows:-

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“Where judgment has been entered under this Order, the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just.” 28. The first point of departure for this court will be to establish whether the Judgement against the Defendant/Applicant herein was regularly or irregularly entered. The main issue revolves around the aspect of service of Summons to Enter Appearance. There is a distinction between a default Judgment, that is regularly entered and the one that is irregularly entered as was set out by the Court of Appeal in the case of “ James Kanyita Nderitu – Versus - Marios Philotas Ghikas (2016) eKLR”, where the Court held as follows: “In a regular default Judgement, the Defendant will have been duly served with summons to enter appearance or to file defence, resulting in default Judgment. Such a Defendant is entitled, under Order 10 Rule 11 of the Civil Procedure Rules, to move the court to set aside the default Judgement and to grant him leave to defend the suit. In such a scenario, the court has unfettered discretion in determining whether or not to set aside default Judgment, and will take into account such factors as the reason for failure of the Defendant to file his Memorandum of appearance or

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defence, as the case may be; the length of time that has elapsed since the default judgment was entered; whether the intended defence raises triable issues; the respective prejudice each party is likely to suffer and whether on the whole it is in the interest of justice to set aside the default Judgment, among others. See Mbogo & Another –Versus - Shah (1968) EA 98, Patel – Versus - E.A. Cargo Handling Services Limited (1975) E.A. 75, Chemwolo & Another –Versus - Kubende (1986) KLR 492 and CMC Holdings – Versus - Nzioka [2004] I KLR 173. However, in an irregular Judgement, the considerations are different. The Court further stated; “In an irregular default Judgment, on the other hand; Judgment will have been entered against a Defendant who has not been served or properly served with summons to enter appearance. In such a situation, the default judgment is set aside ex debito justiae, as a matter of right. The court does not even have to be moved by a party once it comes to its notice that the judgment is irregular; it can set aside the default judgment on its own motion. In addition, the court will not venture into considerations of whether the intended defence raises triable issue or whether there has been inordinate delay in applying to set aside the irregular judgment. The reason why such Judgment is set aside as of right,

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and not as a matter of discretion, is because the party against whom it is entered has been condemned without notice of the allegations against him or an opportunity to be heard in response to those allegations. The right to be heard before an adverse decision is taken against a person is fundamental and permeates our entire justice system.” 29. From the record before court, it is noted that the suit proceeded for hearing whereby service was properly effected upon the Defendant/Applicant by way of substituted service by publishing an advertisement in one of the local dailies – “The Daily Nation” newspaper of wide national circulation and readership based on the provision of Order 5 Rule 17 of the Civil Procedure Rules, 2010. Additionally, the Judgement notice was also served. Hence, the Court notes that the service was proper. Be that as it may, it appears there are some spanners in the works. An aspect which calls for spoiling the well elaborate and organised party herein extensively displayed by the Plaintiff/Respondent herein. There seem to duly noted from the application, that at the time the suit was instituted, the Respondent had already passed on. The service of pleadings was therefore void as it was on a non

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- existent person. Hence, the suit proceeded against a dead person and hence the Judgement was therefore irregular. 30. The Applicant filed the application for review and setting aside of the Ex - Parte Judgement in his capacity as a duly appointed Legal Administrator to the estate of the deceased Defendant herein. It is confirmed from the annextures to the affidavit in support of the application being a Copy of the Certificate of Death bearing Numbers 503519, issued by the Registrar of Births & Deaths dated 15th July, 1999, indicates that indeed the Defendant – Sillas David Katiso, as fate would have it died on 23rd March, 1999. From the record, the suit was filed in the year 2024 and as seen the suit proceeded Ex - Parte. The only Defence left, if at all, was the Plaintiff/Respondent never had this information within their disposal by the time of filing of the suit. But then, this is now where the Legal Latin Maxim of “Ignorantia juris non excusat” meaning “Ignorance of the Law is no Defence/Excuse” comes in handy. The bottom - line issue is whether this was valid or not. 31. To counter this, the Plaintiff/Respondent argument was that the Applicant was indolent on his part as it had taken

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him over 24 years to pursue administration of the estate of his late father and whose assets includes the suit property. Is there a time limit to file Grant Letters of Administration to the estate of a deceased? I am yet to come across any timelines on this from our nor otherwise very elaborate Jurisprudence. The Applicant states that immediately it was discovered that the suit property had been transferred to the Plaintiff/Respondent herein, efforts were made to have the property revert back to the estate of the deceased and which efforts include filing of the instant application. 32. The Respondent is adamant that at this particular point, it will serve no purpose to allow the application as the Judgement has already been perfected and hence the application is overtaken by events. 33. On this the Defendant/Applicant states that the judgement was based on irregular pleadings and the suit was a non-starter from its inception as the same was filed against a dead person. For all intents and purposes. I am in fill agreement with the arguments advanced by the Applicant. Indeed in the current case, it is instructive to note that the Plaintiff/Respondent’s case against the Defendant/Applicant was a nullity ab initio. Legally

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speaking, a suit against a deceased person is a nullity and amounts to nothing because the Defendant is deceased and therefore no cause of action can arise against them. To buttress on this legal point, I seek refuge from the case of:- “ Macfoy – Versus - United Africa Co. Limited (1961) 3 All E.R 1169”, Lord Denning stated as follows concerning an act which is a nullity at page 1172:“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 much ado, though it is sometimes convenient to have the Court to 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”. 34. Also, in yet another Indian Case of:- Pratap Chand Mehta – Versus - Chrisna Devi Meuta AIR 1988 Delhi 267 the court observed as follows:“…. if a suit is filed against a dead person then it is a nullity and we cannot join any legal representative; you cannot even join any other party, because, it is Just as if no suit had been filed. On the other hand, if a suit has been filed against a number of persons one of whom happens to be dead when the proceedings were instituted, then the proceedings are not null and void

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but the court has to strike out the name of the party who has been wrongly joined. If the case has been instituted against a dead person and that person happened to be the only person then the proceedings area nullity and even Order 1 Rule 10 or Order 6 Rule 17 cannot be availed of to bring about amendment.” 35. In fact, the Plaintiff/Respondent’s actions may be deemed to amount to “intermeddling” with the estate which is prohibited under the provision of Section 45 of the Law of Succession Act, Cap. 160. In respect thereto, Gikonyo J in the case of “Re Estate of M’Ngarithi M’Miriti [2017] eKLR” , described “intermeddling” in the following terms: “Whereas there is no specific definition provided by the Act for the term “intermeddling”, it refers to any act or acts which are done by a person in relation to the free property of the deceased without the authority of any law or grant of representation to do so. The category of the offensive acts is not heretically closed but would certainly include taking possession, or occupation of, disposing of, exchanging, receiving, paying out, distributing, donating, charging or mortgaging, leasing out, interfering with lawful liens or charge or mortgage of the free property of the deceased in contravention of the Law of Succession Act. I should add that any act or acts which will dissipate or diminish or put at risk the free property of the deceased are also acts of

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intermeddling in law. I reckon that intermeddling with the free property of the deceased is a very serious criminal charge for which the person intermeddling may be convicted and sentenced to imprisonment or fine or both under section 45 of the Law of Succession Act. That is why the law has taken a very firm stance on intermeddling and has clothed the court with wide powers to deal with cases of intermeddling and may issue any appropriate order(s) of protection of the estate against any person.” 36. Suffice it to say, I think enough has been said to demonstrate why the suit was a non-starter from the word go and clearly a case has been made for granting of the application as sought. I see no need of delving into the provisions of Section 80 of the Civil Procedure Act, Cap. 21 and Order 45 Rule 1 (1) of the Civil Procedure Rules, 2010 which make provisions on review of court orders since the suit against which the application is brought is a nullity. 37. I must admit that the court is placed in a quagmire given that orders to have the suit property registered in the names of the Respondent herein were already issued and perfected. However, bearing in mind the new developments on the matter as graphically spelt out above, the court can surely not allow any party to benefit

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from an illegality. In exercise of the residual jurisdiction of the court which allows me to re-open and review concluded matter it is my view that the land has to revert back to its original owner, from then, the Plaintiff/Respondent will then decide on whether or not to pursue the estate of the deceased through its administrator. 38. As it stands, the Judgement ought to be set aside and the originating summons consequently struck out. I am guided by the court of appeal dictum in the case of:“Benjoh Amalgamated Limited & Muiri Coffee Estate Limited – Versus - Kenya Commercial Bank Limited, [2014] eKLR” where the court stated:“This Court not being the final court has residual jurisdiction to review its decisions to which there is no appeal to correct errors of law that have occasioned real injustice or failure or miscarriage of justice thus eroding public confidence in the administration of justice. This is jurisdiction that has to be exercised cautiously and only where it will serve to promote public interest and enhance public confidence in the rule of law and our system of justice.” 39. For these reasons, therefore, the application by the Defendant/Applicant must succeed accordingly.

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ISSUE No. c). Who bears the costs of the application? 40. It is trite that the issue of costs is at the discretion of the Court. Costs mean the award that a party is granted at the conclusion of a legal action or proceedings in any litigation. 41. The Proviso of Section 27 ( 1 ) of the Civil Procedure Act, Cap. 21 holds that costs follow an event. By the event it means the result or outcome of any legal action. 42. Nonetheless, although the application by the Defendant/Applicant succeeds but bearing in mind the circumstances of this case, it is prudent to have each party bear its own costs. VIII. Conclusion and Disposition 43. Consequently, upon conducting an indepth analysis of the issues set out herein, this Honourable Court is satisfied that the notice of motion herein is merited and ought to be allowed. Thus, specifically, the Honourable Court proceeds to grant the following orders:a) THAT the Notice of Motion application dated 27th October, 2025 be and is hereby found to be meritorious and hence allowed.

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b) THAT all the Ex - Parte proceedings and judgment dated 24th July, 2025 and decree be and are hereby set aside. c) THAT the suit filed through the Originating Summons dated 14th August, 2024 be and is hereby struck out for having been instituted against a dead person. d) THAT the Land Registrar, Kwale be and is hereby directed to ensure that all that suit property known as Land Reference Numbers Kwale/Ng'ombeni ADJ/714 to revert back to the previously registered owner DAVID KATISO SILLAS. e) THAT each party to bear its own costs. IT IS ORDERED ACCORDINGLY. RULING DELIVERED THROUGH THE MICRO – SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS…… 30TH ……. DAY OF ………JULY……..2026 ……………………………… HON. MR. JUSTICE L.L NAIKUNI, ENVIRONMENT & LAND COURT AT

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KWALE. Ruling delivered in the presence of: a) Mr. Daniel Disii, the Court Assistant. b) M/s. Kimani Advocate for the Plaintiffs/Respondents. c) Mr. Kangongo Advocate for the Defendant/Applicants. d) Mr. Ng’onze Advocate for the Affected Party.

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