Said v Issack & 3 others
The bottom line
#Kenya's Environment and Land Court in Mombasa froze all dealings on a disputed Mombasa plot, confirming an estate administrator can sue to protect inherited land.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the suit falls under Order 2 Rule 15 of the Civil Procedure Rules as an abuse of the due process of the Court and a waste of time
- 2.Whether the Court has jurisdiction to hear and determine the suit and whether the Plaintiff has locus standi to institute it
- 3.Whether the documents annexed to the Plaintiff's Supporting and Supplementary Affidavits but neither marked nor executed by a Commissioner for Oaths should be expunged from the record
- 4.Whether the Notice of Motion dated 8th September 2022 meets the threshold for a temporary injunction under Order 40 Rule 1 of the Civil Procedure Rules and a conservatory injunction
- 5.Who will bear the costs of the Notice of Motion dated 8th September 2022
Key legal issues
#Locus standi of the Plaintiff as administrator
The Plaintiff, appointed legal administrator of her father's estate by the Kadhi's court, had locus standi to file the suit on behalf of the estate
The court held that the estate of a deceased vests in personal representatives appointed by the court, and the Plaintiff held an order of appointment from Mombasa Kadhi's Succession Cause No. E180 of 2022. The Defendants' argument that the grant was limited to distribution did not defeat her capacity to sue to preserve estate property pending distribution.
Jurisdiction of the ELC over the dispute
The ELC had jurisdiction; the dispute, though involving family succession elements, centred on title to and dealings with land, and pecuniary jurisdiction was not displaced
The court applied Article 162(2)(b) and Section 13 of the ELC Act, holding that the cause of action related to alleged fraud in transferring land. On pecuniary jurisdiction, the Defendants produced no valuation report proving the property fell below the ELC's jurisdiction, and the Magistrates' Courts Act cannot oust constitutional jurisdiction.
Expungement of unmarked annextures
The unsealed and unmarked annextures were struck out, but the Plaintiff may re-file properly sealed and marked annextures by supplementary or further affidavit
Rule 9 of the Oaths and Statutory Declarations Rules mandatorily requires exhibits to be sealed and marked with serial letters. Non-compliance leads to striking out the offending documents, but the affidavit itself survived, and Order 51 Rule 4 permits the application to proceed; the Plaintiff could reintroduce compliant annextures with leave.
Temporary and conservatory injunction
The Plaintiff met the Giella criteria; temporary and conservatory injunctions were granted preserving the suit property
The court found a prima facie case in the contest over ownership and alleged fraud, irreparable loss in the risk of the property being disposed of before trial, and that the lower risk of injustice lay in granting the injunction. Conservatory orders were granted on the inherent merits, public interest and to prevent the suit's substratum being rendered nugatory.
Striking out under Order 2 Rule 15
The application to strike out the suit as an abuse of process was declined
The court reiterated that striking out is discretionary, drastic and sparingly exercised; a plaintiff is entitled to pursue a claim however implausible unless the claim is bound to fail or is an abuse of process. Determining the issue would require combing through evidence, inappropriate at that stage.
Legal principles established
#- A plaintiff appointed legal administrator of a deceased's estate by a Kadhi's court has locus standi to sue on behalf of the estate
- The Magistrates' Courts Act cannot oust the jurisdiction of the Environment and Land Court vested by Article 162(2) of the Constitution
- Annextures to affidavits must be sealed and marked with serial letters under Rule 9 of the Oaths and Statutory Declarations Rules; unmarked annextures are expunged
- Striking out pleadings is a drastic remedy to be exercised sparingly and only in clear cases
Court orders
#- 1.The Notice of Motion application dated 8th September 2022 be and is hereby found to have merit and thus allowed in its entirety
- 2.An order of temporary injunction restraining, inhibiting and prohibiting all dealings in respect of Plot Number Mombasa/Block XVII/261 till further orders of the Honourable Court
- 3.A conservatory order of injunction restraining the Respondents from in any manner dealing and interfering with Title No. Mombasa/Block XVII/261 till hearing and final determination of the suit
- 4.The suit to be heard and disposed of within 180 days commencing 14th March 2024, with a mention on 30th October 2023 for a Pre-Trial Conference under Order 11 of the Civil Procedure Rules
- 5.The costs of the application to be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Sections 4 and 13 of the Environment and Land Court Act, 2011
Relief refused
#Prayer to strike out the suit and application (by 2nd and 3rd Defendants)
Court found striking-out contention unsubstantiated; striking out is a drastic remedy exercised sparingly
Expungement of the Supporting Affidavit itself
Only the unsealed and unmarked annextures were struck out; the affidavit complied with the law
Costs
The costs of the application to be in the cause.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
That the Notice of Motion application dated 8th September, 2022 be and is hereby found to have merit and thus allowed in its entirety.
That an order of Temporary injunction do issue restraining, inhibiting and prohibiting all dealings in respect of PLOT NUMBER MOMBASA/BLOCK XVII/261 till further Orders of the Honourable Court in this matter.
That a conservatory Order of Injunction be issued restraining the Respondents by themselves, their servants, agents and whomsoever, howsoever from in any manner dealing and interfering with TITLE NO. MOMBASA/BLOCK XVII/261 till hearing and final determination of the Suit.
That the cost of this application to be in the cause.
therefore she had the locus standi to file the suit on behalf of the estate of the deceased.
the provisions of the Magistrates' Act cannot oust the jurisdiction of this Court as vested by Article 162 (2)(a) of the Constitution.
I strike out the unsealed and unmarked annextures annexed on the affidavit sworn on 8th September, 2022
Issues in the judgment
#Court cites Article 162(2)(a) for land jurisdiction though land falls under Article 162(2)(b)
Court strikes out the annextures yet allows the application 'in its entirety' which was premised on those annextures
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Said v Issack & 3 others", Case Analysis (2023). Environment and Land Case Civil Suit 101 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19217/eng@2023-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.