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ELCStruck OutNairobi ELC Case (suit struck out; plaint dated 24/8/2020)· [2021] KEELC 2881 (KLR)

Razia Begum Sherally & 2 others v Saika Jamil Mughal & 4 others [2021] KEELC 2881 (KLR)

Environment and Land Court
18 June 2021
BEB M Eboso
1,879 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a family land dispute because the same issues were already decided in 2007 litigation and the plaintiffs lacked authority to sue for the estate.

What this practically means

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Executive summary

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The plaintiffs, widow and children of the late Mohamed Ulias Mughal, sued the widow and children of his late sibling Mohamed Jamil Mughal, alleging that Jamil had fraudulently transferred LR 209/3597 (registered solely in his name since 1971) from Ulias, and that the defendants planned to sell both that property and LR 209/3596 (co-owned as tenants-in-common by the two siblings since 1986) without succession documents. They sought declarations of fraud, nullity, and injunctions against sale, transfer or interference. Together with the plaint, they filed an application seeking interlocutory injunction and inhibition orders. The 1st to 3rd defendants raised a preliminary objection contending the suit was res judicata and sub judice, that the court lacked jurisdiction, and that the plaintiffs lacked locus standi. The court first disposed of the objection. It found that the ownership of both properties had been litigated in consolidated suits Nairobi HCCC 87 and 88 of 2007 (later ELC 87 and 88 of 2007), which ended in consent orders recorded by Gitumbi J in 2015, and that the 1st plaintiff's attempt to set aside those consent orders had been declined by Komingoi J in 2019. Fresh proceedings were therefore barred by Section 7 of the Civil Procedure Act and constituted an abuse of process; the proper remedy was an appeal. Separately, the court held the plaintiffs were in substance suing for the deceased's estate without pleading representative capacity or exhibiting a joint grant, rendering the suit incurably defective. The preliminary objection was upheld, the suit struck out, the interlocutory application left without further pronouncement, and costs awarded to the plaintiffs to bear.

Key legal issues

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01

Res judicata under Section 7 of the Civil Procedure Act

Holding

The suit is barred by res judicata because ownership of LR 209/3596 and LR 209/3597 was directly and substantially in issue in the consolidated suits Nairobi ELC 87/2007 and 88/2007, and the suit is an abuse of court process.

Reasoning

The court perused the record and found the two preceding consolidated suits between the two siblings raised the same ownership questions. The 2007 suits concluded with consent orders before Gitumbi J in 2015, and an attempt by the 1st plaintiff to set those orders aside had already been declined by Komingoi J in 2019. Fresh proceedings to re-litigate the same questions offended Section 7.

p. 3
02

Locus standi of the plaintiffs

Holding

The plaintiffs, not being duly appointed representatives of the estate of Mohamed Ulias Mughal and not holding a joint grant, lacked capacity to bring the suit seeking estate reliefs.

Reasoning

The plaintiffs did not plead that they sued on behalf of the estate and exhibited no joint grant empowering them to institute the suit for the estate, yet they sought reliefs such as a declaration that the transfer of LR 209/3597 to Jamil Mughal was fraudulent. A suit of that nature requires a duly appointed representative, and the omission was held incurably defective.

p. 3

Legal principles established

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  • Where questions of ownership of property have been the subject of prior litigation, instituting a fresh suit seeking resolution of the same questions is barred under Section 7 of the Civil Procedure Act and constitutes an abuse of process; the remedy against an unsatisfactory consent order is an appeal, not a fresh suit.
  • A suit brought on behalf of a deceased person's estate can only be instituted by duly appointed representatives holding a grant; pleadings seeking estate reliefs without exhibiting a grant render the suit incurably defective.

Court orders

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  1. 1.The preliminary objection by the 1st, 2nd and 3rd defendants is upheld
  2. 2.The suit is struck out for being a blatant violation of Section 7 of the Civil Procedure Act and for lack of joint locus standi
  3. 3.No pronouncements on the application dated 24/8/2020, its fate being the same as that of the suit
  4. 4.The plaintiffs shall bear the costs of the suit

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Section 7
  • Civil Procedure Act (Cap 21)Sections 6 and 8
  • Constitution of Kenya, 2010Articles 27 and 40
Jurisdiction invoked
Jurisdiction contested; suit struck out, including for want of jurisdiction as raised in the preliminary objection

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, "Razia Begum Sherally & 2 others v Saika Jamil Mughal & 4 others [2021] KEELC 2881 (KLR)", Case Analysis (2021). Nairobi ELC Case (suit struck out; plaint dated 24/8/2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2881/eng@2021-06-18

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