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ELCDismissed· [2019] KEELC 4578 (KLR)

Osman Tahir Sheikh Said & another (suing as the executors of the will of Tahir Sheikh Said Ahmed) v Nomad Energy Limited; Sabir Tahir Sheikh Said & 5 others (Interested Parties) [2019] KEELC 4578 (KLR)

Environment and Land Court
17 January 2019
EOE. O. Obaga
2,251 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Executors can sue to protect a deceased's land before probate is granted, but this family lost because valid leases signed during the deceased's lifetime trumped trespass claims.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (E.O. Obaga J) disposed of two applications arising from a dispute over LR No.209/8009 Park Road, Ngara, Nairobi, owned by the late Tahir Sheikh Said Ahmed, on which a petrol station stood. The plaintiffs, two of three executors of the deceased's will, sought temporary prohibitory and mandatory interlocutory injunctions against Nomad Energy Limited, alleging it was a trespasser operating the petrol station under a sub-lease from Capital Oil Limited granted after the deceased's death and thus intermeddling with the estate. The defendant countered that the executors lacked locus standi absent probate and that it held a valid 10-year lease from Capital Oil Limited, which had itself been leased the property for 20 years by the donee of the deceased's general power of attorney during his lifetime. The court held that executors may sue before probate and even where the will is contested (applying Virginia Edith Wamboi Otieno and Sakina Sote Kaittany), but found no basis for either injunction, since the lease chain rested on the power of attorney and the absence of consent to sublet could not defeat the sub-lease at interlocutory stage. The first application was dismissed with costs to the respondent. Separately, six children and a widow of the deceased sought joinder as interested parties, dismissal or stay of the suit, and an injunction. The court held it lacked jurisdiction over succession issues (for the Kadhi's Court or the Family Division of the High Court in Mombasa), that they could not litigate for the defendant, and that effective relief could be granted without them; that application was dismissed with no order as to costs given the family relationship of the parties.

Key legal issues

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01

Locus standi of executors before grant of probate

Holding

Executors have locus standi to sue to protect the estate's property even before probate and even where the will is challenged

Reasoning

Relying on Virginia Edith Wamboi Otieno and Sakina Sote Kaittany, the court held that an executor derives title from the will and the deceased's property vests in him from death, so he may bring a fresh action before probate. A challenge to the will does not suspend executorship; any dispute over the will's validity belongs to the succession forum.

p. 2
02

Interlocutory prohibitory and mandatory injunction

Holding

Neither injunction was warranted; the lease and sub-lease chain resting on a power of attorney granted in the deceased's lifetime defeated the trespass claim at interlocutory stage

Reasoning

A prohibitory injunction requires a prima facie case with probability of success; a mandatory injunction requires special circumstances such as a clear case or an attempt to steal a match. Here the donee of the general power of attorney leased the property to Capital Oil Limited before the deceased died, and the subsequent sub-lease to the respondent was not defeated by absence of evidence of consent to sublet.

p. 3
03

Joinder of interested parties and jurisdiction over succession issues

Holding

Joinder refused; succession issues fall outside the court's jurisdiction and belong to the Kadhi's Court or the Family Division of the High Court

Reasoning

An interested party must show the court cannot grant an effective remedy without them; here a decree could be passed in their absence. Their complaints concerned the will's validity and probate, matters for the succession court. They also could not litigate on behalf of the defendant, which was on record and capable of litigating on its own.

p. 3

Legal principles established

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  • Executors of a will may bring proceedings to protect the deceased's property even before grant of probate, and even where the will is being challenged
  • Executorship does not remain in abeyance merely because the will is contested
  • An intended interested party must demonstrate that the court cannot grant an effective remedy in their absence

Court orders

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  1. 1.The plaintiffs' Notice of Motion dated 23rd March 2018 is dismissed with costs to the respondent
  2. 2.The intended interested parties' application dated 15th May 2018 is dismissed with no order as to costs

Authorities

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Legislation

  • Law of Succession ActSection 80(1) and 80(2)

Cases cited (2)

  • Virginia Edith Wamboi Otieno Vs Joash Ochieng Ougo & another
    (1987) eKLR
  • Sakina Sote Kaittany & another Vs Mary Wamaitha
    (1995) eKLR (printed as '91995) eKLR')
Jurisdiction invoked
Original jurisdiction over disputes relating to land; succession issues expressly declined and reserved to the Kadhi's Court or the Family Division of the High Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Osman Tahir Sheikh Said & another (suing as the executors of the will of Tahir Sheikh Said Ahmed) v Nomad Energy Limited; Sabir Tahir Sheikh Said & 5 others (Interested Parties) [2019] KEELC 4578 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4578/eng@2019-01-17

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