Automated Summary
Key Facts
The court ruled that the Appellant (Elisha Adul Hindia) died on 31 July 2009, and no legal substitution was made before the judgment in favor of the Appellant was issued on 9 April 2015. The judgment was set aside as irregular because the court lacked jurisdiction to proceed after the Appellant's death without substitution. The Respondent (Lucas Ngode Maganda) successfully applied to review and cancel the 2015 judgment, with the court finding the proceedings post-death were a nullity.
Deceased Name
Elisha Adul Hindia
Issues
- Whether the judgment and decree entered/issued on 9th April, 2015 was a regular judgment considering the Appellant's death on 31st July, 2009
- What is the position in law regarding the validity of appellate proceedings where a party meets his demise before judgment is rendered and remains unsubstituted?
- What specific orders should be made to commend the Respondent's application for review and setting aside the judgment
- Whether the Respondent has demonstrated sufficient grounds to warrant the judgment and decree of 9th April, 2015 being reviewed and set aside
- A determination as to costs of this application, particularly given the Appellant's death
Date of Death
2009 July 31
Holdings
- The court determined that the Appellant's death on 31 July 2009 rendered the appellate proceedings invalid as no substitution was made, resulting in a nullity. The judgment and decree issued on 9 April 2015 were irregular due to the lack of jurisdiction post-death and were set aside ex debito justitiae as a matter of right.
- The Respondent's application to review and set aside the 9 April 2015 judgment and decree was allowed, as the court found the proceedings after the Appellant's death were a nullity. The law firm of O.P. Ngoge & Co. Advocates was granted leave to act for the Respondent in place of the previous firm.
- The court ruled that the irregular judgment and decree must be set aside unconditionally (ex debito justitiae) because the proceedings after the Appellant's death lacked legal validity. No costs were awarded to the Appellant as he was deceased.
Remedies
- No order as to costs due to the Appellant's death.
- Leave granted to O.P. Ngoge & Co. Advocates to represent the Respondent in place of S.O. Madialo & Co. Advocates.
- Judgment and decree issued on 9th April 2015 are reviewed and set aside, along with all consequential orders.
Probate Status
No letters of administration ad litem obtained for the Appellant's estate after his death in 2009
Legal Principles
The court held that appellate proceedings conducted without substitution of a deceased party are a nullity, rendering any subsequent judgment irregular. An irregular judgment can be set aside ex debito justitiae (as a matter of right) without requiring proof of new evidence or delay, as it lacks legal validity due to procedural defects.
Succession Regime
Relevant to substitution requirements under Section 45 of the Law of Succession Act
Precedent Name
- Lalji Bhimji Sanghani Builders & Contractors v City Council of Nairobi
- Bouchard International (Services) Limited v M'Mwereia
- Florence Hare Mkaha v Pwani Tawakal Mini Coach & another
- Gulf Fabricators v County Government of Siaya
- Nyamogo & Nyamogo v Kogo
- Baiywo v Bach
- Remco Limited v Mistry Jadva Parbat & Company Limited & 2 others
- National Bank of Kenya Limited v Ndungu Njau
- Jane Kanyiita Nderitu & another v Marios Philotas Ghikas & another
- Muyodi v Industrial and Commercial Development Corporation & Anor
- Said Sweilem Gheithan Saanum v Commissioner of Lands & 5 others
Cited Statute
- Civil Procedure Rules, 2010
- Constitution of Kenya, 2010
- Civil Procedure Act
- Law of Succession Act
Judge Name
Joe M. Omido
Passage Text
- An advocate cannot act for a dead person. Any proceedings undertaken on behalf of a dead person are a nullity.
- The judgment delivered in favour of the Appellant after his demise was therefore rendered in favour of a non-existent party. The court lacked jurisdiction to proceed in the absence of a proper party before it. The proceedings that were taken after the demise of the Appellant and the resulting judgement were therefore irregular and a nullity.
- The position in law is that if an Appellant dies before the judgment in the appeal is rendered and no substitution is made, then the proceedings after the Appellant's death are technically a nullity because there is no proper Appellant before the court to prosecute the appeal.