Mohamed Safiq Rafiq v Ayub Khan Karim & another [2014] KEELC 457 (KLR)
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 the plaint should be struck out as disclosing no reasonable cause of action or as an abuse of the court process
- 2.Whether the plaintiff had locus standi to sue in respect of the suit property, the estate of Abdul Hameed Moghul having been distributed by the lawful administrator
Key legal issues
#Whether the plaint should be struck out under Order 2 rule 15(1) notwithstanding Article 159(2) of the Constitution
The plaint was struck out as an abuse of process; the plaintiff's claim was without merit because documentary evidence showed the estate had been lawfully distributed and his wife's share paid out.
The court found the applicant had established by documentary evidence how the property was sold to the defendant by the administrator of the estate, how the shares were distributed to the deceased's three children and widow, and how the plaintiff's wife's share (14.625%) was paid by cheque through Chase Bank Ltd. The plaintiff's wife never denied these facts, so the husband's claim, pursued through a power of attorney from her, had no merit and no locus.
Locus standi of the plaintiff to sue over the suit property
The plaintiff had no locus standi; the estate was distributed by the lawful administrator appointed by the court, and the plaintiff held no right in respect of the deceased Abdul Hameed Moghul.
The former Chief Justice Abdul Majid Cocker, brother-in-law of the deceased and administrator in Nairobi Succession Cause No. 3341 of 2003, sold the suit property at arm's length and distributed the estate, including 14.625% to Sajdha Abdul Hameed Moghul, the plaintiff's wife, whose share was paid out as she instructed. The plaintiff, therefore, had no right or interest in the deceased's estate or the property.
Legal principles established
#- A suit filed by a party with no locus standi over a deceased's estate that has been distributed by the lawful administrator, as sanctioned by Islamic law, is an abuse of the court process and liable to be struck out.
Court orders
#- 1.The suit is struck out as being an abuse of the court process
- 2.Costs of the suit awarded to the applicant/defendant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction; striking out of plaint under Order 2 rule 15(1) of the Civil Procedure Rules
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.
This suit is therefore struck out as being an abuse of the court process. The costs of the same shall be to the applicant.
He has no locus to file it, the estate having been distributed by the lawful Administrator of the estate as appointed by this court and shares distributed as sanctioned by the Islamic Law.
Issues in the judgment
#The suit property number appears inconsistently in the judgment as both '209/8000/48' and '209/80000/48', and the parties' names appear with variant spellings (Moghul/Moghal/Hameed/Hemeed).
The case title/number of the suit and the names of the parties are not fully stated in the judgment excerpt.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamed Safiq Rafiq v Ayub Khan Karim & another [2014] KEELC 457 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/457/eng@2014-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.