Court declares old tribunal ruling void as dead man cannot be sued

The Environment and Land Court at Machakos has dismissed an appeal seeking to uphold a decades-old land tribunal decision.

The judgment, delivered by Justice Ann Koross on May 5, brings to a close a feud between step-siblings over a portion of land in Matungulu.

The dispute pitted Alexander Dick Katona against Michael Peter Musyoka and Johnson Ndambuki Kilonzo, who served as the personal representatives of the late John Kilonzo Kioko. 

The conflict reached the appellate stage after a lower court in Kangundo ruled that Katona was a trespasser on land parcel number Matungulu/Katine/890. 

While the parties shared a father, they were born to different mothers, and the feud centred on whether Katona had a legitimate right to occupy and cultivate a portion of the family land.

Katona’s defence rested on a 2005 decision by the Land Disputes Tribunal, which reportedly allocated a portion of the suit property for his family’s benefit. 

He maintained throughout the proceedings that his entry onto the land was lawful, asserting in his defence that he occupied the portion by virtue of that tribunal case, which was later adopted as a judgment of the court in 2006. 

However, the court heard that the registered owner, Kioko, had died in 2002—three years before the tribunal case was even filed.

Justice Koross noted that a lawsuit initiated against a person who is already dead is flawed. 

In his ruling, the judge stated, "It is now established legal doctrine that a lawsuit filed against a deceased individual is inherently null and void from the outset". 

He further observed that proceeding without the legal representatives of the deceased violated the constitutional right to a fair hearing.

"It is an indispensable requirement of justice that the party who had to decide shall hear both sides, giving each an opportunity of hearing what is urged against him," the judge stated, 

Beyond the issue of the deceased party, the court found that the Tribunal never had the authority to mediate the dispute in the first place. 

The evidence showed the land was part of an adjudication section at the time, which placed it under the jurisdiction of the Land Adjudication Act rather than the tribunal. 

Justice Koross remarked that the appellant appeared to have "conflated the procedures" of different land laws. 

The tribunal's findings were therefore null and void from the onset and had no legal effect.

The respondents, representing the estate, had consistently argued that the appellant’s presence on the land was an "unjustifiable intrusion". 

During the trial, Musyoka, testifying as the first witness, held that the appellant had trespassed by "cultivating thereon without permission". 

The appellate court agreed, upholding the earlier permanent injunction that restrains Katona from entering or dealing with the property. 

Justice Koross dismissed the appeal and ordered that the appellant bear own costs, as the appeal was found to lack merit.