Court declares old tribunal ruling void as dead man can’t 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 long-running 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 are the personal representatives of the late John Kilonzo Kioko.

The case arose after the lower court in Kangundo ruled that Katona was a trespasser on a land parcel.

Although the parties shared a father, they were born of different mothers. The dispute centred on whether Katona had a lawful right to occupy and cultivate part of the family land.

Katona based his defence on a 2005 decision of the Land Disputes Tribunal, which reportedly allocated a portion of the suit property for his family’s benefit. He maintained that his occupation was lawful, stating in his defence that he occupied the land by virtue of that tribunal decision, which was later adopted as a judgment of the court in 2006.

However, the court heard that the registered owner of the land, Kioko, died in 2002, three years before the tribunal proceedings were instituted.

Justice Koross noted that a case initiated against a deceased person is fundamentally defective. She stated, “It is now established legal doctrine that a lawsuit filed against a deceased individual is inherently null and void from the outset”.

She further observed that failure to involve the legal representatives of the deceased violated the 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 had no jurisdiction to determine the dispute in the first place. Evidence showed the land formed part of an adjudication section at the time, placing it under the Land Adjudication Act rather than the tribunal system.

Justice Koross said the appellant appeared to have “conflated the procedures” under different land laws. The tribunal’s decision was therefore null and void from the outset and had no legal effect.

The respondents, acting for the estate, maintained that Katona’s presence on the land amounted to an “unjustifiable intrusion”. During the trial, Musyoka, who testified as the first witness, said the appellant had trespassed by “cultivating thereon without permission”.

The appellate court agreed with the lower court’s findings, upholding the permanent injunction restraining Katona from entering or dealing with the property.

Justice Koross dismissed the appeal and ordered the appellant to bear his own costs, finding that the appeal lacked merit.