Wakf Commissioners v Mohamed Bin Umeya Bin Abdulmanji Bin Mwijabu & Another
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Bhandari, J. was correct in ruling against the preliminary objection that the issues raised by the Originating Summons and affidavits were unsuitable for determination by originating summons procedure and should be tried by ordinary suit
- 2.The incidence of costs in the High Court and on appeal
- 3.Whether the Attorney General's consent under Section 62 of the Civil Procedure Act covers a fresh suit (expressly not decided)
Key legal issues
#Suitability of originating summons procedure for disputed factual matters
The appeal was allowed: complex issues of disputed fact are not appropriate for decision by originating summons and the judge below erred in rejecting the preliminary objection
The court reviewed East African and English authority showing that originating summons procedure is designed for simple, undisputed matters. Here the respondents' allegations of maladministration of the Wakf were strenuously contested, an accountant's report made detailed charges, and steps appropriate to a full action had already been taken. The authorities, which counsel for the respondents eventually accepted, established that such matters must proceed by ordinary suit.
Costs where a party delays raising a procedural objection
Although the respondents instituted inappropriate proceedings, the appellant's late raising of the preliminary objection (3rd May 1983) justified depriving it of the High Court costs up to that date
The appellant knew the matters alleged would be disputed yet did not raise the objection despite several court appearances, including directions before Schofield, Ag. J. It was as much incumbent on the appellant to direct the court to the proper course, possibly more so. However, once the authorities were before the respondents' counsel, the objection was obvious and the appeal costs were awarded to the appellant.
Legal principles established
#- Complex and contentious questions of fact and law are not appropriate for determination by originating summons; a judge should dismiss the summons and direct the parties to pursue their claims by ordinary suit
- Contentious proceedings by beneficiaries against trustees charging breach of trust or default ought normally to be commenced by writ, not originating summons
- Where there is no Kenyan rule corresponding to RSC Order 28 rule 8(1), a matter converted from originating summons must be recommenced de novo
Court orders
#- 1.Appeal against Bhandari, J.'s decision allowed and his order of 24th May 1983 set aside
- 2.Appellant to pay all the respondents' costs in the High Court up to and including the date of the application before Bhandari, J.
- 3.Appellant awarded the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- Civil Case No. 455 (O.S.) of 1977
- Jurisdiction invoked
- First appellate jurisdiction over an appeal from an order of the High Court at Mombasa
Relief refused
#A firm conclusion on whether the Attorney General's consent under Section 62 of the Civil Procedure Act covers the fresh suit
The court declined to decide the point lest it fetter a future decision of the court
Costs
Appellant to pay all the respondents' costs in the High Court up to and including the date of the application before Bhandari, J.; appellant awarded the costs of this appeal
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
When it becomes obvious that the issues raise complex and contentious questions of fact and law, a judge should dismiss the summons and leave the parties to pursue their claims by ordinary suit.
The foregoing authorities are sufficient to show, as Mr. Malik eventually accepted, that complex issues of disputed fact such as are raised here, are not appropriate for decision by way of an originating summons.
For these reasons I would allow the appeal against Bhandari, J.'s decision and set aside his order of May 24th, 1983.
I would therefore order that the appellant pay all the respondents' costs in the High Court up to an including the date of the application Bhandary, J. as well because they were not apprised of their mistaken course until they were faced with this objection.
I would therefore allow the appellant the costs of this appeal.
Issues in the judgment
#Judgment text contains typographical errors (e.g. 'don not', '19o5', 'maladmistration', 'Bhandary')
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wakf Commissioners v Mohamed Bin Umeya Bin Abdulmanji Bin Mwijabu & Another", Case Analysis (1984). Civil Appeal No. 83 of 1983. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1984/111/eng@1984-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.