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ELCDismissedELC 88 of 2007 (lead file, consolidated suits)· [2019] KEELC 157 (KLR)

Faiza Parveen Mughal v Mohammed Jamil Mughal & 2 others [2019] KEELC 157 (KLR)

Environment and Land Court
5 December 2019
2,145 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed a widow's attempt to undo a land settlement, ruling she had no legal standing because she held no grant of administration.

What this practically means

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Executive summary

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This was a ruling on a notice of motion dated 18 August 2015 by Razia Begum Sherally, widow of the deceased defendant Mohammed Ulias Niaz, seeking to set aside a consent order dated 14 April 2015, to vacate orders of 31 December 2015, and to have the succession cause file brought before the court. The plaintiff filed a preliminary objection contending that the applicant was not a legal representative of the deceased defendant and had no locus standi, and that the application offended Order 24 rules 4 and 5 of the Civil Procedure Rules. The applicant argued she was executrix under the deceased's will and that authority begins at death under section 80 of the Law of Succession Act, and that the consent order was procured by fraud, collusion and misrepresentation between the plaintiff and Faiza Parveen Mughal, who had obtained letters of administration ad litem in Succession Cause No. 580 of 2015. The court framed three issues: the merit of the preliminary objection, whether grounds for setting aside the consent order were satisfied, and costs. Upholding the objection, the court held the applicant had made no application to be substituted and held no grant; the question was one of law. Faiza Parveen Mughal held valid, unrevoked letters of administration ad litem and had been substituted as defendant. Competing claims to representation were reserved to the High Court Family Division in Succession Cause No. 580 of 2015. Applying Flora N Wasike v Destimo Wamboko, the court found the consent judgment was entered into by parties with legal capacity and no ground for setting it aside was merited. The application was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the preliminary objection on locus standi was a pure point of law

Holding

The objection was upheld; the applicant's failure to apply for substitution under Order 24 rule 4 was a question of law, not fact, and she had no locus standi

Reasoning

The court reasoned that Order 24 rule 4 requires an application to cause the legal representative of a deceased defendant to be joined. The applicant never made such an application and no letters of administration or grant of probate were issued to her. By contrast, Faiza Parveen Mughal held unrevoked letters of administration ad litem and had been substituted as defendant. The competing claims to representation were a matter for the succession cause.

p. 3
02

Whether grounds existed to set aside the consent order of 14 April 2015

Holding

None of the grounds advanced (fraud, misrepresentation, collusion) was merited; the consent was entered into by parties with legal capacity

Reasoning

Applying Flora N Wasike v Destimo Wamboko, a consent order has contractual effect and may only be set aside on grounds justifying setting aside a contract. Faiza Parveen Mughal, as holder of letters of administration ad litem and substituted defendant, had capacity to enter the consent. The court found the fraud and collusion allegations unproven and unsubstantiated.

p. 3
03

Whether the question of who is entitled to represent the estate should be determined in this suit

Holding

That question falls within the jurisdiction of the High Court, Family Division, in Succession Cause No. 580 of 2015

Reasoning

The court agreed with the plaintiff that the competing claims of Faiza Parveen Mughal and Razia Begum Sherally to legal representation of the deceased defendant are succession matters reserved for the family division, not for the Environment and Land Court in this suit.

p. 3

Legal principles established

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  • A person who is not a legal representative of a deceased defendant and has not been substituted under Order 24 rule 4 of the Civil Procedure Rules has no locus standi to make an application in the suit
  • A consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting aside a contract

Court orders

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  1. 1.Preliminary objection dated 29 January 2016 upheld
  2. 2.Notice of motion dated 18 August 2015 dismissed
  3. 3.Each party to bear own costs
Jurisdiction invoked
Sections 1A, 1B, 3 and 3A of the Civil Procedure Act (Cap 21) and Order 57 of the Civil Procedure Rules 2010

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, "Faiza Parveen Mughal v Mohammed Jamil Mughal & 2 others [2019] KEELC 157 (KLR)", Case Analysis (2019). ELC 88 of 2007 (lead file, consolidated suits). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/157/eng@2019-12-05

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