Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedELCA Case No. 4 of 2018· [2022] KEELC 2109 (KLR)

Iye Mohammed Bakari v Maweni Estate Limited & 2 others [2022] KEELC 2109 (KLR)

Environment and Land Court
19 January 2022
2,971 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

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

#
The appellant, Iye Mohammed Bakari, appealed to the Environment and Land Court at Mombasa against a ruling of Hon. R. N. Makungu (SRM) delivered on 18th January 2006 in Chief Magistrate's Court Civil Case No. 863 of 2005, dismissing her chamber summons dated 23rd August 2005 in which she sought injunctive orders restraining the respondents from evicting her from a house on Plot No. 8 of Plot No. 1534/1/MN. Her father, Mohamed Bin Bakari, died on 28th June 1994, and she held only a limited grant for purposes of the suit. The 1st Respondent, Maweni Estate Limited, had levied distress for ground rent arrears of Kshs. 61,176 through Kithemu Auctioneers without filing suit, and the house was sold and transferred to the 3rd Respondent by agreement dated 1st April 2005. The appellant contended that selling the deceased's property without suing his legal representatives contravened section 45 of the Law of Succession Act and that the Distress for Rent Act could not be invoked on rent not agreed. The respondents argued the suit was overtaken by events, the house was movable property, and the appellant had neither a prima facie case nor irreparable injury. Sitting as a first appellate court applying Selle v Associated Motor Boat Company, and guided by Giella v Cassman Brown, Mrao Ltd and Suleiman v Amboseli Resort, the court found it undisputed that the respondents had sold a deceased person's property while aware of his death, without moving to court or proving the arrears - a procedure contrary to section 45 of the Law of Succession Act. The court found the appellant had established a prima facie case and that the balance of convenience favoured her, held the trial magistrate had erred, allowed the appeal as prayed, and awarded costs to the appellant.

Key legal issues

#
01

Whether the Appellant had established a prima facie case for an interlocutory injunction

Holding

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.

Reasoning

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.

p. 3
02

Where the balance of convenience lay

Holding

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.

Reasoning

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.

p. 3
03

Whether the Trial Magistrate erred in dismissing the application dated 23rd August 2005

Holding

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.

Reasoning

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.

p. 3

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. 1.Appeal allowed as prayed
  2. 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. 3.Costs of the appeal awarded to the Appellant

Authorities

#

Legislation

  • Law of Succession ActSection 45
  • Distress for Rent Act (Cap 293)Section 3(1)
  • Indian Transfer of Property Act 1882Section 105

Cases cited (6)

  • Selle and another vs Associated Motor Boat Company Ltd and others
    (1968) 1 EA 123
  • Giella v Cassman Brown & Co Ltd
    (1973) EA 358
  • Mrao Ltd vs First American Bank of Kenya Ltd
    (2003) eKLR
  • Suleiman vs Amboseli Resort Ltd
    (2004) KLR 589
  • Films Rover International
    (1986) 3 ALL ER 772
  • Abdulrazak Khalifa Salim vs. Harun Rashid Khator (as Administrator of the Estate of the Rashid Khator Salim, Deceased) & Anor
    HCCC No. 188 of 2006
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.