Iye Mohammed Bakari v Maweni Estate Limited & 2 others [2022] KEELC 2109 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled you cannot sell a dead person's property without first going to court, reversing an eviction.
What this practically means
#Executive summary
#Key legal issues
#Whether the Appellant had established a prima facie case for an interlocutory injunction
Yes. The Respondents sold property of a deceased person (Mohamed Bin Bakari, who died on 28th June 1994) without first suing his legal representatives or proving the alleged ground rent arrears in court, contrary to section 45 of the Law of Succession Act. This was not proper procedure in law.
The court found it undisputed that the Respondents sold the deceased's house while aware of his death, without obtaining any court order or proving the arrears, contrary to section 45 of the Law of Succession Act which prohibits intermeddling. On the material presented, the Appellant's right had apparently been infringed, satisfying the prima facie test.
Where the balance of convenience lay
The balance of convenience lay with the Appellant, who had lived in the premises all her life; the status quo ought to be maintained until the suit is heard and determined.
Applying the Giella v Cassman Brown principles together with the Suleiman v Amboseli Resort refinement, the court held that maintaining the status quo carried the lower risk of injustice, and the overriding objective required the court to do justice to the parties by safeguarding the status quo until full hearing.
Whether the Trial Magistrate erred in dismissing the application dated 23rd August 2005
Yes. The Trial Magistrate erred in law and in fact in failing to appreciate that the Appellant had proved a prima facie case for the orders sought.
Re-evaluating the matter afresh under the Selle v Associated Motor Boat Company standard, the court found the Appellant had proved a prima facie case and that the balance of convenience favoured her, meaning the trial court's dismissal of the chamber summons dated 23rd August 2005 was erroneous and the appeal merited allowance.
Legal principles established
#- A party cannot intermeddle with the property of a deceased person without first moving to court and suing the legal representatives of the deceased; selling a deceased's property for alleged ground rent arrears without proving the arrears in court contravenes section 45 of the Law of Succession Act
- A first appellate court may re-examine and re-evaluate the evidence afresh and draw its own conclusions, subject to the fact that it neither saw nor heard the witnesses
Court orders
#- 1.Appeal allowed as prayed
- 2.The trial court's dismissal of the Appellant's application dated 23rd August 2005 was found to be in error, with the court finding that the Appellant had proved a prima facie case and that the balance of convenience favoured her
- 3.Costs of the appeal awarded to the Appellant
- On appeal from
- Chief Magistrate's Court
- Civil No. 863 of 2005
- Jurisdiction invoked
- First appellate jurisdiction over the Chief Magistrate's Court ruling in Civil Case No. 863 of 2005 (appeal filed as ELCA Case No. 4 of 2018)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Iye Mohammed Bakari v Maweni Estate Limited & 2 others [2022] KEELC 2109 (KLR)", Case Analysis (2022). ELCA Case No. 4 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2109/eng@2022-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.