Ahmed (Sung as manager and guardian in YMAD (Patient) v Mohamed (Interim administration in respect of the Estate of Said Bin Awadh & Awadh hammid Bin damnam alias Awadh Bin Ahmed Bin Damnam) (Environment and Land Case E001 of 2023) [2024] KEELC 4729 (KLR)
The bottom line
#The Mombasa Environment and Land Court froze Kadhi's Court orders to issue new title deeds for a Mombasa plot until the full land ownership dispute is heard.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit against the Defendant should be struck out under Order 2 Rule 15(1)(a) for non-disclosure of a cause of action
The application was dismissed. The pleadings disclose a connection between the Defendant and the events, and the dispute on ownership of the land raises triable issues that cannot be resolved without evidence at trial.
The court relied on Yaya Towers v Trade Bank, D.T. Dobie v Muchina and Crescent Construction to restate that striking out is drastic and discretionary, to be exercised sparingly and with greatest care, never driving a litigant from the seat of justice unless the pleading is clearly untenable. Examining the pleadings in entirety, the bone of contention is ownership of the land, which cannot be dismissed without examining evidence. Issues such as the Defendant's capacity as interim administrator, given the stay issued by the High Court on 4th August 2023, were triable matters for the hearing.
Whether the Kadhi's Court orders of 17th January, 2023 and 13th July, 2023 directing issuance of fresh titles and distribution of Plot No. 128/II/MN should be stayed
The Plaintiff's application dated 18th July, 2023 was allowed; a stay of the Kadhi's Court orders was issued pending the hearing and determination of the suit.
The court observed that it sits not as an appellate court but as the forum mandated under Section 13 of the ELC Act to determine ownership of the suit property. The ex parte Kadhi's orders were final in effect, directing the Land Registrar to issue fresh titles and ordering police enforcement, and were made by a court that may not have had jurisdiction to make such orders. Balancing the parties' interests and the balance of convenience, the court found the orders detrimental and granted the stay pending full hearing.
Who bears the costs of both applications
Costs of both applications were awarded to the Plaintiff but made costs in the cause.
Invoking Section 27(1) of the Civil Procedure Act that costs follow the event, and the Supreme Court decisions in Jasbir Rai Singh v Tarchalan Singh and Cecilia Karuru Ngayo v Barclays Bank of Kenya, the court held the Plaintiff entitled to costs of both applications, but ordered them to be in the cause rather than payable immediately.
Legal principles established
#- The power to strike out a pleading is discretionary, must be exercised sparingly and only in exceptional cases, and a plaintiff is entitled to pursue a claim however implausible unless the claim is bound to fail or is an abuse of process
- An application under Order 2 Rule 15(2) to strike out for non-disclosure of a reasonable cause of action must be determined on the pleadings only, without evidence
- A reasonable cause of action means an action with some chance of success when the allegations in the plaint alone are considered
- Costs follow the event under Section 27(1) of the Civil Procedure Act
Court orders
#- 1.The Notice of Motion application by the Plaintiff dated 18th July, 2023 is found to have merit and is allowed in its entirety
- 2.The Notice of Motion application dated 6th November, 2023 is found to lack merit and is dismissed in its entirety
- 3.An order issued that there be a stay of the orders made on 17th January, 2023 and 13th July 2023 in the Kadhi's Court by Hon Habib Salim Vumbi in relation to Plot No. 128/II/MN in so far as issuance of fresh titles and distribution of the same, pending the hearing and determination of this suit
- 4.Mention on 22nd July, 2024 for Pre-Trial Conference and hearing fixed on 19th September, 2024
- 5.Costs of both Notices of Motion to be in the cause
- Jurisdiction invoked
- Article 162 of the Constitution of Kenya, 2010 and Section 13 of the Environment and Land Court Act, No. 19 of 2011 (exclusive jurisdiction over ownership, use and occupation of land), together with Section 3A of the Civil Procedure Act, Cap. 21
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ahmed (Sung as manager and guardian in YMAD (Patient) v Mohamed (Interim administration in respect of the Estate of Said Bin Awadh & Awadh hammid Bin damnam alias Awadh Bin Ahmed Bin Damnam) (Environment and Land Case E001 of 2023) [2024] KEELC 4729 (KLR)", Case Analysis (2024). ELC Case (Mombasa) - Originating Summons converted from Amended Originating Summons dated 20th February, 2023 (specific number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4729/eng@2024-06-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.