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ELCPartially AllowedEnvironment and Land Case Civil Suit 101 of 2022· [2023] KEELC 19217 (KLR)

Said v Issack & 3 others

Environment and Land Court
27 July 2023
32,159 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~129 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court in Mombasa froze all dealings on a disputed Mombasa plot, confirming an estate administrator can sue to protect inherited land.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (Naikuni J) determined the Plaintiff's Notice of Motion dated 8th September 2022 seeking a temporary and conservatory injunction over Title No. Mombasa/Block XVII/261 pending trial. The Plaintiff, administrator of her late father's estate, alleged that his name was fraudulently removed from the title and the property transferred through a chain of transactions to the 1st Defendant for Kshs. 16,000,000. The Defendants opposed, contending the Plaintiff lacked locus standi (her Kadhi's court grant being limited to distribution), that the ELC lacked jurisdiction as the dispute was a succession matter and fell within the Chief Magistrate's pecuniary jurisdiction, that her annextures were unmarked and should be expunged, and that she had no prima facie case, the 1st Defendant being a bona fide purchaser for value. The court framed five issues and held: (1) the striking-out application failed, striking out being a drastic remedy; (2) the Plaintiff, as appointed administrator, had locus standi, and the ELC had jurisdiction - the Magistrates' Courts Act could not oust its constitutional jurisdiction and no valuation proved the pecuniary point; (3) the unsealed and unmarked annextures were struck out, with leave to re-file compliant ones; (4) the Giella criteria were met - a prima facie case arose from the contested ownership and alleged fraud, irreparable loss from the risk of disposal, and the balance of convenience favoured preservation; and (5) costs were in the cause. The application was allowed in its entirety, with temporary and conservatory injunctions issuing, and the suit directed to be heard within 180 days.

Key legal issues

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01

Locus standi of the Plaintiff as administrator

Holding

The Plaintiff, appointed legal administrator of her father's estate by the Kadhi's court, had locus standi to file the suit on behalf of the estate

Reasoning

The court held that the estate of a deceased vests in personal representatives appointed by the court, and the Plaintiff held an order of appointment from Mombasa Kadhi's Succession Cause No. E180 of 2022. The Defendants' argument that the grant was limited to distribution did not defeat her capacity to sue to preserve estate property pending distribution.

02

Jurisdiction of the ELC over the dispute

Holding

The ELC had jurisdiction; the dispute, though involving family succession elements, centred on title to and dealings with land, and pecuniary jurisdiction was not displaced

Reasoning

The court applied Article 162(2)(b) and Section 13 of the ELC Act, holding that the cause of action related to alleged fraud in transferring land. On pecuniary jurisdiction, the Defendants produced no valuation report proving the property fell below the ELC's jurisdiction, and the Magistrates' Courts Act cannot oust constitutional jurisdiction.

p. 52
03

Expungement of unmarked annextures

Holding

The unsealed and unmarked annextures were struck out, but the Plaintiff may re-file properly sealed and marked annextures by supplementary or further affidavit

Reasoning

Rule 9 of the Oaths and Statutory Declarations Rules mandatorily requires exhibits to be sealed and marked with serial letters. Non-compliance leads to striking out the offending documents, but the affidavit itself survived, and Order 51 Rule 4 permits the application to proceed; the Plaintiff could reintroduce compliant annextures with leave.

p. 53
04

Temporary and conservatory injunction

Holding

The Plaintiff met the Giella criteria; temporary and conservatory injunctions were granted preserving the suit property

Reasoning

The court found a prima facie case in the contest over ownership and alleged fraud, irreparable loss in the risk of the property being disposed of before trial, and that the lower risk of injustice lay in granting the injunction. Conservatory orders were granted on the inherent merits, public interest and to prevent the suit's substratum being rendered nugatory.

05

Striking out under Order 2 Rule 15

Holding

The application to strike out the suit as an abuse of process was declined

Reasoning

The court reiterated that striking out is discretionary, drastic and sparingly exercised; a plaintiff is entitled to pursue a claim however implausible unless the claim is bound to fail or is an abuse of process. Determining the issue would require combing through evidence, inappropriate at that stage.

p. 48

Legal principles established

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  • A plaintiff appointed legal administrator of a deceased's estate by a Kadhi's court has locus standi to sue on behalf of the estate
  • The Magistrates' Courts Act cannot oust the jurisdiction of the Environment and Land Court vested by Article 162(2) of the Constitution
  • Annextures to affidavits must be sealed and marked with serial letters under Rule 9 of the Oaths and Statutory Declarations Rules; unmarked annextures are expunged
  • Striking out pleadings is a drastic remedy to be exercised sparingly and only in clear cases

Court orders

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  1. 1.The Notice of Motion application dated 8th September 2022 be and is hereby found to have merit and thus allowed in its entirety
  2. 2.An order of temporary injunction restraining, inhibiting and prohibiting all dealings in respect of Plot Number Mombasa/Block XVII/261 till further orders of the Honourable Court
  3. 3.A conservatory order of injunction restraining the Respondents from in any manner dealing and interfering with Title No. Mombasa/Block XVII/261 till hearing and final determination of the suit
  4. 4.The suit to be heard and disposed of within 180 days commencing 14th March 2024, with a mention on 30th October 2023 for a Pre-Trial Conference under Order 11 of the Civil Procedure Rules
  5. 5.The costs of the application to be in the cause
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Sections 4 and 13 of the Environment and Land Court Act, 2011

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Said v Issack & 3 others", Case Analysis (2023). Environment and Land Case Civil Suit 101 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19217/eng@2023-07-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.