Rajesh Pranjivan Chudasama v Sailesh Pranjivan Chudasama

The Court applied Otieno v Ougo, holding that an administrator cannot bring an action before taking out letters of administration, and distinguished locus standi from cause of action per Alfred Njau v City Council of Nairobi. Being aware of a purported Will, the respondent should have sought to have the executor propound the Will or renounce executorship, or proceed under section 26 of the Law of Succession Act.

Following Floris Pierro v Giancario Falasconi, the Court held that section 47 gives the Court all-embracing powers to make necessary orders including injunctions to safeguard a deceased's estate, read together with rule 73 which reserves the Court's inherent jurisdiction. This holding rejected the appellant's contention that injunctions are unavailable in succession matters, though it was immaterial given the respondent's lack of locus standi.

Applying the Mukisa Biscuit test, the Court held that a preliminary objection raises a pure point of law argued on the assumption that all facts pleaded are correct, and cannot be raised where facts must be ascertained or judicial discretion exercised. Locus standi and jurisdiction being critical preliminary issues, the Judge should have determined them before other pending applications.

The Court applied Evans v Esso Kenya Ltd, which disapproved determining substantive issues at a mention without hearing submissions or the parties' consent, describing the practice as repugnant to justice. Since the respondent's petition was a nullity ab initio for want of locus standi, the consolidation was illegal and the Judge could not refuse to strike out the petition on the basis of that consolidation.

Having found that the respondent lacked locus standi to institute the petition, the Court reasoned that all orders flowing from those proceedings necessarily fell with them. The Court declined to determine the survivorship question relating to the joint bank accounts as unnecessary given this conclusion.