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KadhiPartially AllowedNot stated in the judgment (notice of motion dated 8th August 2023)

Mamo v Mamo (Succession Cause E009 of 2023) [2023] KEKC 27 (KLR)

Kadhi's Court, Moyale
1 September 2023
1,296 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan Kadhi's Court froze estate land and ordered an estate custodian to disclose years of collected rent, but declined to force the money into a joint account.

What this practically means

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Executive summary

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The applicant (Quresho Hassan) filed a notice of motion dated 8th August 2023 in the Kadhi's Court at Moyale seeking certification as urgent, a temporary injunction restraining the respondent (Adan Hassan) from selling, transferring, subdividing or leasing plot No. 131 in Moyale Town and unregistered ancestral land in Mansile within Moyale Sub county, an order that the respondent declare the total rent received from the rental plot, and that the rental proceeds be deposited with the court or into a joint account pending hearing and determination of the suit. The motion was brought in a succession dispute in which the applicant claims to represent herself, her mother and two siblings - four heirs in total. The respondent, though served on 11th August 2023, filed no response but was allowed to make an oral response. He did not oppose the injunction or the disclosure of rent, contending the estate had been distributed and he had purchased the shares of other heirs, and opposing only the joint-account order on the ground that he would suffer loss. The court noted an earlier suit between the same parties over the same subject matter, withdrawn upon reconciliation. Holding that the applicant's shares would be adequately secured if the respondent was required to declare and account for rent collected and keep proper records, the court granted the injunction, ordered disclosure of rent received since 2017, declined the joint-account/deposit order, deferred costs to the end of the matter, and granted the respondent leave to respond to the main suit. Judgment delivered by Hon. Galgalo Adan, Principal Kadhi, at Moyale on 1st September 2023.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant's prayers for a temporary injunction, declaration of rent received and deposit of rental proceeds in a joint account should be granted pending the hearing and determination of the suit

Key legal issues

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01

Whether a temporary injunction should issue to preserve the deceased's estate pending determination of the suit

Holding

Granted; the respondent did not oppose preservation of the estate and the court found no reason to withhold the injunction

Reasoning

The court observed that the respondent raised no objection to the orders restraining him from selling, transferring, subdividing or leasing plot No. 131 in Moyale Town and the unregistered ancestral land at Mansile. With the respondent's concession and the applicant's claim to represent four heirs, the court found preservation of the estate appropriate pending hearing and determination.

p. 2
02

Whether rental proceeds should be deposited in a joint account or with the court

Holding

Refused; instead the respondent is to declare rent received since 2017 and keep good records of rent collected

Reasoning

The court considered whether the applicant showed a fear that the respondent may misappropriate the estate to her disadvantage, or whether the orders would negatively impact the respondent, who claimed to have purchased shares of other heirs. Concluding that the applicant's shares were well secured if the respondent was required to account and keep proper records, the court found the joint-account order unnecessary and declined it.

p. 3
03

Effect of the earlier withdrawn suit between the same parties over the same subject matter

Holding

Noted but reserved for determination in the main suit; the questions of whether the estate was distributed and shares sold remain pending

Reasoning

The court noted that a similar matter between the same parties over the same subject matter had been filed in the court and withdrawn upon reconciliation, a fact not opposed by the applicant. However, the applicant denied the respondent's claims about distribution and sale of shares, raising questions which remain for determination in the main suit; they did not defeat the interim orders.

p. 2

Legal principles established

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  • A court will decline interim deposit of estate proceeds where the beneficiary's share is otherwise secured and the estate custodian is held accountable for rent collected and required to keep proper records

Court orders

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  1. 1.The respondent is restrained, whether acting by himself, agents, employees, servants or whosoever, from selling, transferring, subdividing or leasing plot No. 131 in Moyale Town and unregistered ancestral land in Mansile within Moyale Sub county, pending hearing and determination of the application
  2. 2.The respondent should declare the total rent he received from the said rental plot since his inception in the year 2017 in collecting rent from estate property plot no. 131 in Moyale town
  3. 3.Costs of the application to be dealt with at the end of the matter
  4. 4.The respondent is given leave to respond to the main suit and the matter to be mentioned for next cause of action

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Not stated in the judgment; matter is a succession/estate dispute heard by the Kadhi's Court

Relief refused

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Deposit of rent proceeds with the court or in a joint account to be opened by the applicant and the respondent pending determination of the suit

The court was not satisfied that there was a demonstrated fear that the respondent would misappropriate the estate once the applicant's shares and those of her mother and siblings were secured and the respondent required to keep records and account for rent collected

p. 3

Costs

Costs of the application to be dealt with at the end of the matter (no costs order made at this stage)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

That the respondent is hereby restrained, whether acting by himself, her agents, employees, servants, or whosoever from selling, transferring, subdividing or leasing or plot No, 131 in Moyale Town, and unregistered ancestral land in Mansile within Moyale Sub county, pending the hearing and determination of the application.
p. 3Final orders – temporary injunction preserving estate property
That the respondent should declare the total rent he received from the said rental plot, since his inception in the year 2017, to the role of collecting the said rent from the estate property plot no. 131 in Moyale town.
p. 3Final orders – disclosure of rent collected from estate property
he will be accountable of what he had already collected and continue to collect and should keep good record of the rent collected.
p. 3Accountability of estate custodian in lieu of joint account deposit

Issues in the judgment

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minor

Judgment does not state the case number of the notice of motion or the main petition

minor

Judgment does not name the deceased or the estate

minor

Inconsistent dates given for when the respondent began collecting rent: paragraph 7 says he will disclose rent collected 'for the period from the year 2016 up to date' while paragraphs 10 and the orders refer to rent collected 'since his inception in the year 2017'

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, "Mamo v Mamo (Succession Cause E009 of 2023) [2023] KEKC 27 (KLR)", Case Analysis (2023). Not stated in the judgment (notice of motion dated 8th August 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2023/27/eng@2023-09-01

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