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ELCDismissedNot stated in the judgment (Notice of Motion dated 8 March 2021, Environment and Land Court)· [2021] KEELC 2841 (KLR)

Ali Said Ali v Abdallah Ali Salim & another [2021] KEELC 2841 (KLR)

Environment and Land Court of Kenya
8 June 2021
MSMunyao Sila
1,587 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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The court dismissed a landowner's bid to reclaim a Garissa plot because a High Court had already revoked his father's title years earlier.

What this practically means

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Executive summary

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The plaintiff, administrator of the estate of his late father Said Ali Salim, filed a Notice of Motion dated 8 March 2021 alongside his plaint, seeking a temporary injunction restraining the defendants from collecting rent on Plot No. Garissa Town/Block 1/162, an order of arrest of the 2nd defendant for alleged misappropriation of rents, and orders reverting the property to his late father. The plaintiff averred that the property belonged to his grandfather, who died, and that his father's siblings consented to its transfer to the father, who obtained a certificate of lease in 1994. He complained that an order of 21 July 2005, made in an application filed after his father's death, irregularly revoked his father's title. The defendants did not enter appearance or respond despite service. The court, applying the Giella vs Cassman Brown principles, examined whether a prima facie case existed. It found from the documents that the plaintiff's father died on 27 June 2005, not 1996; that the impugned order was made in the High Court succession cause for the grandfather's estate (Succession Cause No. 1154 of 1991, Nairobi); and that it revoked the father's title and ordered de novo administration of the estate, registering the land in the deceased's name. The court held that a party aggrieved by a High Court order must appeal to the Court of Appeal; the ELC, a court of equal status, has no jurisdiction to reverse it, and in any event the application came more than 15 years later and would be time barred. The plaintiff also did not disclose the current status of the succession cause. With the title revoked, the plaintiff had nothing to hinge his case on. The application was dismissed with no orders as to costs, the defendants having not responded.

Key legal issues

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01

Whether a prima facie case was established for interlocutory injunction

Holding

No prima facie case was established; the plaintiff's father's title had been revoked by a lawful High Court order, leaving the plaintiff without any title to rely on

Reasoning

The court applied the Giella vs Cassman Brown principles. On the documents, the plaintiff's father died on 27 June 2005, not 1996 as alleged. The order of 21 July 2005 was made by the High Court in Succession Cause No. 1154 of 1991, revoking the father's title and ordering de novo administration of the grandfather's estate. With that title revoked, the plaintiff had no case with a probability of success.

p. 2
02

Whether the ELC can reverse a High Court order revoking a title

Holding

The ELC has no jurisdiction to interfere with or reverse an order of the High Court, a court of equal status; the remedy is an appeal to the Court of Appeal

Reasoning

The plaintiff's real grievance was against the order of 21 July 2005 made in the High Court succession cause. A first-instance court cannot collaterally attack a decision of a court of equal status. Further, the application came more than 15 years after the order and would be time barred, and the plaintiff did not disclose the current status of the succession cause.

p. 2

Legal principles established

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  • A court of equal status has no jurisdiction to interfere with or reverse an order of the High Court; the remedy of an aggrieved party is an appeal to the Court of Appeal
  • Where a registered title has been revoked by a competent court, the plaintiff has no title upon which to hinge a claim

Court orders

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  1. 1.Notice of Motion dated 8 March 2021 dismissed
  2. 2.No orders as to costs

Authorities

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Cases cited (1)

  • Giella vs Cassman Brown
    (1973) EA 358
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act (not expressly cited); court declined jurisdiction to review a High Court succession order

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, "Ali Said Ali v Abdallah Ali Salim & another [2021] KEELC 2841 (KLR)", Case Analysis (2021). Not stated in the judgment (Notice of Motion dated 8 March 2021, Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2841/eng@2021-06-08

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