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ELCDismissedMombasa ELC Case (plaint dated 20th June 2011)· [2018] KEELC 458 (KLR)

Nathan Joes Barreh & another v Mechisadek Rahuya Mondi & 2 others [2018] KEELC 458 (KLR)

Environment and Land Court
17 December 2018
CYC. K. Yano
2,423 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court dismissed a family's claim to a Kaloleni house because they sued the wrong people and never opened a succession case.

What this practically means

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Executive summary

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The plaintiffs, son and wife (since deceased) of the late Joel Barreh Kamun, sued claiming that a house without land on Plot No.47 Section XVII, Kaloleni, Mombasa belonged to the estate of Joel Barreh Kamun, who allegedly purchased it in 1969. They sought a declaration vesting the house and its rents in the estate and an order compelling the 3rd defendant, the trustee of the landlord, to recognize the estate and transfer the house. The 1st defendant defended on the basis that the house was acquired by Leah Joel Barreh in 1976 and devolved to her daughter Ruth Kageha Mondi and thereafter to her heir Hamida Salim; the suit against the 2nd defendant was withdrawn. The 3rd defendant denied any case against her. Only the plaintiffs testified; the defendants called no witnesses. The court found no cause of action against the 1st defendant, whom the 1st plaintiff admitted was not involved in any manner. It held that the correct beneficiaries of the estate could only be ascertained in a succession cause, and that the orders sought would adversely affect non-parties - the estates of Leah Joel Kamun and Ruth Kageha Mondi, Hamid Salim and the Public Trustee - without a hearing, breaching natural justice. The claim was not proved against the 1st and 3rd defendants. The suit was dismissed with costs to the 1st and 3rd defendants.

Key legal issues

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01

Cause of action against the 1st defendant

Holding

No cause of action disclosed against the 1st defendant

Reasoning

The plaintiffs made no claim against the 1st defendant; he laid no claim on the property and no evidence showed interference with the plaintiffs' rights. The 1st plaintiff admitted in cross-examination that the 1st defendant was not involved in any manner.

p. 4
02

Binding non-parties

Holding

Orders cannot be granted affecting non-parties such as the estates of Leah Joel Kamun and Ruth Kageha Mondi, Hamid Salim and the Public Trustee

Reasoning

Serious allegations were made against persons not joined to the suit, with no explanation for their omission. Granting the orders sought would breach natural justice and be unconstitutional. Consequently the suit could not stand.

p. 4
03

Proper forum for determining beneficiaries

Holding

Ascertainment of the correct beneficiaries lies in a succession cause, not this suit

Reasoning

The relief sought against the 3rd defendant was recognition of the estate and transfer of the house to the correct beneficiaries, but such determination belongs to succession proceedings.

p. 4

Legal principles established

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  • A court cannot make orders adversely affecting the rights of persons who are not parties to the proceedings without affording them a hearing

Court orders

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  1. 1.The plaintiffs' suit is dismissed with costs to the 1st and 3rd defendants
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a house without land on Plot No.47 Section XVII, Kaloleni, Mombasa

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, "Nathan Joes Barreh & another v Mechisadek Rahuya Mondi & 2 others [2018] KEELC 458 (KLR)", Case Analysis (2018). Mombasa ELC Case (plaint dated 20th June 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/458/eng@2018-12-17

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