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ELCStruck OutMaralal ELC Case (Notice of Motion dated 30th September 2019)· [2020] KEELC 1729 (KLR)

Daudi Abdalla v Hakim Yusuf Mohamud & another [2020] KEELC 1729 (KLR)

Environment and Land Court
14 July 2020
3,619 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court struck out a 33-year-old land claim because the people sued had no legal capacity to defend the deceased owner's estate.

What this practically means

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Executive summary

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The Applicant moved the court by Notice of Motion dated 30th September 2019 under Order 40 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules seeking interim injunctive orders restraining the Respondents from constructing, selling, advertising, transferring, developing or interfering with Plot No. 265 and Plot No. 123A Maralal pending the hearing of the suit. He claimed he was allotted Plot 123A in 1996 and had purchased Plot 265 from the late Mohamud Ismail in 1986 for Ksh 40,000, the plot having been excised from Plot 124 Maralal. The Respondents opposed, arguing they were non-suited because no letters of administration had been taken out to the estate of Mohamud Ismail, the true owner of the land, and that the Applicant's claim on a 1986 agreement was time barred under Section 4(1) of the Limitation of Actions Act. Both sides filed written submissions by consent. The court, Oundo J, held that although the objections were not raised as a formal preliminary objection, they attacked the jurisdiction of the court. Applying Mukisa Biscuit, Lilian S v Caltex, and the locus standi authorities, the court found that no grant of representation had been obtained for the estate of Mohamud Ismail, so neither Yusuf Mohamud Ismail nor the Respondents had capacity to defend or be sued over the property. Since orders against them would be in vain, the court struck out the suit, dismissed the injunction application, and awarded costs to the Respondents on 14th July 2020.

Key legal issues

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01

Whether the Respondents had locus standi to be sued

Holding

They did not: the suit property belonged to the estate of Mohamud Ismail (deceased), no grant of representation had been taken out, and the Respondents were sued as representatives of a different estate

Reasoning

The plot claimed by the Applicant was to be excised from land owned by Mohamud Ismail, who died in 1994. No letters of administration for his estate were shown to have been taken out, so neither Yusuf Mohamud Ismail nor the Respondents could properly defend or be sued over it. Suing the Respondents as representatives of the estate of Yusuf Mohamud Ismail did not cure the defect because the subject matter belongs to Mohamud Ismail's estate. Locus standi is a primary point of law similar to jurisdiction, and its absence renders a suit fatally defective.

p. 4
02

Whether the Court should grant the interim injunction sought

Holding

No. The suit was struck out on the locus standi objection and the application dismissed with costs

Reasoning

Although the objection was not raised as a formal preliminary objection, the court applied Mukisa Biscuit principles, finding locus standi a pure point of law capable of disposing of the suit. Invoking Owners of Motor Vessel 'Lilian S', the court held that without jurisdiction it could not take one more step, and relying on Erick Makokha, declined to grant injunctions that would be ineffective in practice since orders against non-suited parties would be in vain.

p. 5
03

Whether the Applicant's cause of action was time barred

Holding

Not decided; the suit was struck out on the locus standi objection before the limitation issue was determined

Reasoning

The Respondents argued that enforcing a 1986 sale agreement in a suit filed in 2019 contravened Section 4(1) of the Limitation of Actions Act, and relied on IGA v Makerere University that equity aids the vigilant. The court acknowledged the Respondents raised weighty issues going to jurisdiction but disposed of the matter on the locus standi point without making a finding on limitation.

p. 4

Legal principles established

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  • Locus standi is a point of law which goes to the root of any suit; its absence renders a suit fatally defective and capable of being struck out
  • A court cannot make orders against persons who are not legal representatives of the estate owning the suit property, as such orders would be in vain and unenforceable
  • Where a court has no jurisdiction, it must down its tools and take no further step in the matter

Court orders

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  1. 1.The suit is struck out
  2. 2.The Notice of Motion dated 30th September 2019 is dismissed
  3. 3.Costs to the Respondents

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 40 Rule 1; Order 51 Rule 1
  • Civil Procedure ActSections 1A, 1B, 3A
  • Limitation of Actions ActSection 4(1)

Cases cited (16)

  • Giella vs Cassman Brown
    (1973) EA 358
  • Mrao vs First American Bank of Kenya Limited & 2 Others
    (2003) KLR 125
  • Pius Kipchirchir Kogo vs Frank Kimeli Tenai
    [2018] eKLR
  • Amir Suleiman vs Amboseli Resort Limited
    [2014] eKLR
  • Orix Oil Limited vs Paul Kabeu
    [2014] eKLR
  • Nguruman Limited vs Jan Bonde Nielsen & 2 Others
    [2014]
  • Muriithi Ngwenya vs Gikonyo Macharia Mwangi & 2 Others
    [2018] eKLR
  • IGA vs Makerere University
    [1972] EA 65
  • Haron Onyancha vs National Police Service Commission & Another
    [2017] eKLR
  • Mukisa Biscuit Manufacturing Co. Ltd. vs West End Distributors Ltd.
    (1969) EA 696
  • The Owners of the Motor Vessel "Lilian S" vs Caltex (Kenya) Ltd
    [1989] KLR 1
  • Alfred Njau & 5 Others vs City Council of Nairobi
    [1983] eKLR; [1982-88] 1 KAR 229
  • Virginia Edith Wamboi Otieno v Joash Ochieng Ougo & Another
    (1982-99) 1 KAR
  • Morjaria v Abdalla
    [1984] KLR 490
  • Trouistik Union International & Another v Jane Mbeyu & Another
    Civil Appeal No. 145 of 1990
  • Erick Makokha & 4 Others vs Lawrence Sayani & 2 Others
    [1994] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution / Environment and Land Court Act (not expressly stated; application brought under Order 40 Rules 1 and 51 Rule 1 of the Civil Procedure Rules 2010 and Sections 1A, 1B and 3A of the Civil Procedure Act)

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, "Daudi Abdalla v Hakim Yusuf Mohamud & another [2020] KEELC 1729 (KLR)", Case Analysis (2020). Maralal ELC Case (Notice of Motion dated 30th September 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1729/eng@2020-07-14

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