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ELCPartially AllowedNotice of motion dated 30.4.2015 in a constitutional petition (Mombasa)· [2015] KEELC 243 (KLR)

Awadh Saleh Said v O.C.S Bamburi Police Station & 6 others [2015] KEELC 243 (KLR)

High Court of Kenya at Mombasa
29 September 2015
1,701 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A beneficiary can challenge dealings with family land through a constitutional petition in Kenya, even without letters of administration, and may get conservatory orders stopping construction.

What this practically means

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Executive summary

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The petitioner, describing himself as the eldest son and a beneficiary of the estate of the late Saleh Said Sherman, registered owner of L.R MN/Subdivision No. 398 (Mombasa C.R. No. 7805/1) at Utange, moved the court by notice of motion dated 30th April 2015 under Articles 22 and 23(3)(b) and (c) of the Constitution, seeking an injunction restraining the 5th – 7th respondents from entering upon or dealing with the suit property and a conservatory order stopping construction pending determination of the petition. He deposed that unknown people invaded the land in March 2015 and again on 17th April 2015, when they began constructing structures. The 1st – 4th respondents did not oppose the application, undertaking to provide security. The 5th – 7th respondents opposed it, contending the petitioner lacked capacity to sue without letters of administration, that they had occupied the land for years, that squatters abounded, and that related suits (CMCC No. 474 of 2015 and No. 58 of 2015, including an adverse possession claim) existed. The court framed two issues: the petitioner's locus and the merit of the orders. Holding that the petition secured the petitioner's own rights as a beneficiary, the court found locus established and distinguished the respondents' authorities. On the merits it granted the conservatory order (prayer 6), directed the 1st – 3rd respondents to provide security for its implementation, but declined the injunction and prayer 7 because of uncertainty over other squatters and the structures shown in the photographs, substituting an order maintaining status quo. Each party was to bear its own costs of the motion.

Key legal issues

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01

Locus standi of the petitioner to bring the petition as a beneficiary of the estate without letters of administration

Holding

The petitioner has locus because the petition secures his own rights as a beneficiary; the objection fails

Reasoning

Article 22(1) and 22(2)(b) permit a person claiming a violation, or acting in the interest of others, to institute proceedings. The petitioner pleads that as a beneficiary he is entitled to possession and quiet enjoyment of the suit property. Although the claim secures the estate's rights, the petitioner has a personal stake. The authorities cited by the respondents requiring letters of administration (Benson Maina v Joseph Mwangi) are distinguishable because those claims were brought solely on behalf of the deceased's estate.

p. 3
02

Whether the conservatory order and injunction sought are merited

Holding

The conservatory order (prayer 6) is granted, but the injunction (prayer 5) and prayer 7 are refused and status quo substituted

Reasoning

The evidence showed the 5th – 7th respondents entered the land on 17th April 2015 and commenced construction, with photographs showing complete and incomplete structures. The court held orders likely to result in eviction at an interlocutory stage should be avoided; a conservatory order preserves the petition from becoming nugatory. As to the injunction, uncertainty about other squatters and whether photographed houses lay on the suit land made the broader orders unsafe.

p. 3

Legal principles established

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  • A petitioner who is a beneficiary of a deceased's estate may institute a constitutional petition to protect his own stake in estate property even before letters of administration are obtained; case law requiring letters of administration for estate claims is distinguishable where the claim is brought on the petitioner's own behalf as beneficiary
  • A court at the interlocutory stage of a constitutional petition should be careful not to issue orders that will result in eviction; a conservatory order or maintenance of status quo is preferable to preserve the petition

Court orders

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  1. 1.Prayer No. 6 of the motion allowed: a conservatory order prohibiting the 5th, 6th and 7th respondents or their assigns from carrying out or continuing with construction of any buildings or structures on the suit property pending determination of the petition
  2. 2.The 1st – 3rd respondents to provide security to ensure the conservatory order is implemented
  3. 3.An order that status quo be maintained so that no further dealings are undertaken on the land (in lieu of the injunction in prayer 5)
  4. 4.Each party to bear their respective legal costs of the motion

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 22(1)
  • Constitution of Kenya, 2010Article 22(2)(b)
  • Constitution of Kenya, 2010Article 23(3)(b) & (c)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure RulesRules 3, 4, 19 and 23

Cases cited (6)

  • Giella Vs Cassman Brown
  • Waithaka Vs ICDC
  • Caltex Oil Vs Evanson Njiri
    (2009) e KLR
  • Coast Bus Vs Samuel Mbuvi
  • Peter Karanja Vs Joseph Kamande
  • Benson Maina Vs Joseph Mwangi
    (2006) e KLR
Jurisdiction invoked
Articles 22 and 23(3)(b) & (c) of the Constitution and Rules 3, 4, 19 and 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules

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, "Awadh Saleh Said v O.C.S Bamburi Police Station & 6 others [2015] KEELC 243 (KLR)", Case Analysis (2015). Notice of motion dated 30.4.2015 in a constitutional petition (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/243/eng@2015-09-29

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