How listing a deceased person as a Suer led to case dismissal

A land petition in Nakuru collapsed not because the submissions lacked merit, but because of a glaring procedural flaw: the first petitioner was deceased.

The case, which sought to reclaim parcels in the Chapakundi Settlement Scheme allegedly lost during the 1992 ethnic clashes, could not proceed because the court found that a dead person cannot sue, and the son who swore the supporting affidavit lacked legal authority to represent the estate.

The dispute dates back to the early 1990s, when families in Olenguruone were displaced during politically instigated ethnic violence.

Among those affected was the family of the late Karanja Huko, according to court documents. The petitioners claimed that after their eviction, others occupied their land despite a government caveat, and that transfers and allocations were made illegally without their knowledge.

They argued that this amounted to arbitrary deprivation of property, discriminatory treatment, violation of their right to fair administrative action, and denial of access to justice in accordance with the Constitution.

The petition, filed on 2 July 2024, sought declarations of constitutional violations.

Further, it sought “an order for the cancellation of all title deeds issued after 1992 following the placement of the government caveat.”

Additionally, they requested the court to issue orders for the restoration of their parcels, compensation for loss of use and crops, and security guarantees upon return.

Through their counsel, they argued that the State had failed to protect them and rectify decades of administrative failures.

In submissions dated July 29, 2025, counsel asserted that “the forced eviction without protection or due process and subsequent abandonment undermined the dignity of the Petitioners,” adding that the State’s inaction denied them access to justice.

“It was counsel’s submission that the Petitioners were registered owners of land with valid titles and were arbitrarily deprived of property contrary to Article 40 of the Constitution,” the judgement reads.

Although the Respondents—the Ministry of Lands and the Attorney General—did not file a formal response, the court scrutinised the petition itself.

It noted that constitutional petitions must meet the threshold laid down in the Anarita Karimi Njeru case, requiring precise pleading of violations with supporting evidence.

But the petition was found lacking. It resembled a plaint rather than a constitutional petition, did not clearly cite the violated articles, and lacked annexures supporting claims of illegal transfers, caveat removal, or land occupation.

A significant flaw, the judge noted, was the listing of a deceased as the first petitioner, despite his death.

“The person who swore the affidavit in support of the Petition, one Francis Gakero Karanja, is not a party in this Petition. He described himself as a beneficiary of the estate of Karanja Huko (deceased), his father, who owned the plot, in the Olenguruone Scheme, but did not show whether he has the capacity to sue on behalf of the estate of his deceased father,” Justice Millicent Odeny observed.

He further pointed out what he termed a key red flag in the petition.

“The Deponent’s deceased father, Karanja Huko, has been listed as the first Petitioner. How can a dead person/deceased sue?” he posed.

This defect, the judge said, was a fatal flaw.

Additionally, the other 28 petitioners were described as “faceless” because there was no evidence granting the deponent authority to swear on their behalf.

“The deceased is listed with 28 others as Petitioners, who are faceless as there is no evidence even in the flawed supporting affidavit that they have given the deponent authority to swear the affidavit on their behalf,” he stated.

“Authority to sue on other people’s behalf is necessary; otherwise, anybody can sue using your name without your consent, which can lead to grave consequences.”

Further, he noted that the petitioners have not specified with clarity the articles that have been infringed.

The judge said the “petition is very sketchy with no annexures of the alleged transfers and registration to other individuals.”

Because of these issues, the court concluded that the petition failed to meet the required threshold and did not address the substantive question of whether the petitioners’ rights had been violated.

“Having found that the Petition does not meet the required threshold for petitions, I will therefore not deal with the second issue as to whether the petitioners have demonstrated that the Respondents have violated their constitutional rights,” he ruled.

Consequently, the petition was dismissed, with no orders as to costs since it was undefended.