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ELCStruck OutMombasa HCCC (details not stated in judgment)· [2016] KEELC 1001 (KLR)

Nurdin Akasha Abdalla & Another v Yusuf Abdalla & 2 Others [2016] KEELC 1001 (KLR)

High Court of Kenya
19 April 2016
AOA. Omollo
2,934 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court struck out a family's land claim because they had no letters of administration to sue on behalf of the deceased's estate.

What this practically means

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Executive summary

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The Plaintiffs, self-described heirs and beneficiaries of the late Ibrahim Akasha Abdalla who died intestate on 3rd May 2000, brought a notice of motion dated 7th April 2015 seeking a temporary injunction restraining the 2nd Defendant from selling or alienating land parcel Mombasa/Block XI/280 and a caution against further dealings, pending determination of the suit. They alleged the suit property formed part of the deceased's estate, that the 1st Defendant used falsified powers of attorney and transfer forms to sell it to the 2nd Defendant for Kshs. 4,500,000/= in March 2005, and that the resulting title was illegally obtained. The 1st Defendant countered that he and his wife had purchased the property from the deceased in 1985, obtained a court order in 2004, and pleaded res judicata and lack of capacity. The 2nd Defendant claimed purchase for value without notice and relied on the Plaintiffs' non-disclosure of prior suits. The court found the suit was not res judicata since HCCC No. 74 of 2005 was withdrawn before hearing and the ex-parte order in HCCC No. 1287 of 2004 was interlocutory. However, it held the Plaintiffs lacked locus standi: with no grant of letters of administration and unconcluded citation proceedings in Mombasa HC Succession Cause No. 9 of 2012, they could not sue on behalf of the estate. Applying the Trovisik Union International principle, the court struck out both the application and the plaint with costs to the Defendants. The merits of the injunction were not considered.

Key legal issues

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01

Res judicata

Holding

The suit is not res judicata; HCCC No. 74 of 2005 was withdrawn before hearing and the ex-parte order in HCCC No. 1287 of 2004 was interlocutory, not a determination on the merits

Reasoning

The party raising res judicata bore the burden of proving the prior suit was concluded on its merits. HCCC No. 74 of 2005 was withdrawn before trial, and the 6th December 2004 order was ex-parte and interlocutory. Neither could found a plea of res judicata.

p. 4
02

Locus standi of heirs/beneficiaries without a grant

Holding

Plaintiffs, as heirs and beneficiaries without letters of administration, have no locus standi to sue on behalf of the estate; suit struck out

Reasoning

The Plaintiffs admitted no grant of letters of administration existed and the citation proceedings in Mombasa HC Succession Cause No. 9 of 2012 remained unconcluded. Section 26 of the Law of Succession Act concerns dependants' provision and did not confer capacity. Following Trovisik Union International, a party suing for a deceased's estate must obtain letters of administration.

p. 5

Legal principles established

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  • A beneficiary or heir of a deceased's estate cannot sue on behalf of the estate without letters of administration
  • A party cannot confer locus standi on another merely by making allegations about that party's actions

Court orders

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  1. 1.The notice of motion dated 7th April 2015 is struck out
  2. 2.The plaint dated 7th April 2015 is struck out
  3. 3.Costs to the 1st and 2nd Defendants

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Sections 1A, 3, 3A and 63(e)
  • Civil Procedure Rules 2010Order 40 Rule 1; Order 37
  • Law of Succession Act (Cap 160)Section 26

Cases cited (6)

  • ELIZABETH KAMENE NDOLO -VS- GEORGE MATATA NDOLO
    Nairobi Civil Appeal No. 128 of 1995
  • NGUGI -VS- KINYANJUI & 3 OTHERS
    Civil Appeal No. 1 of 1986
  • BAHADRALI EBRAHIM SHAMJOR AL NOOR JAMAL & OTHERS
    Civil Appeal No. 2010 of 1997 (unreported)
  • ABRAHAM MUTAI & 5 OTHERS -VS- PAUL M. MUTWII & 34 OTHERS
    unreported
  • VIRGINIA EDITH WAMBOI OTIENO -VS- JOASH OCHIEN OUGO & OMOLLO SIRANGA
    Civil Appeal No. 31 of 1987 1 KAR (1982-1988)
  • Trovisik Union International & Another vs Mrs Jane Mbevu
    C.A.C.A No 145 of 1990
Jurisdiction invoked
Sections 1A, 3, 3A and 63(e) of the Civil Procedure Act (Cap 21) and Order 40 Rule 1 of the Civil Procedure Rules 2010, invoked by the Plaintiffs for injunctive relief

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, "Nurdin Akasha Abdalla & Another v Yusuf Abdalla & 2 Others [2016] KEELC 1001 (KLR)", Case Analysis (2016). Mombasa HCCC (details not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1001/eng@2016-04-19

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