Hamed v Mohamed & another (Environment & Land Case E049 of 2024) [2025] KEELC 1021 (KLR)
The bottom line
#A Kenyan court struck out a land suit because an administrator of a deceased trustee had no right to sue over a wakf property.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of the plaintiff
The plaintiff, claiming as administrator of a deceased trustee's estate, has no locus; she is neither a trustee nor a beneficiary, and trusteeship is not heritable.
The Wakf Deed dated 11th May 2015 created the wakf and vested the suit property in trustees. Clause 9 provides that vacancies are filled by appointment by remaining trustees. A grant of letters of administration over a deceased trustee's estate does not confer trusteeship or beneficiary status. The trustees held the property in trust for the wakf, and the plaintiff was never appointed a trustee under clause 9.
Jurisdiction of the ELC over wakf disputes
The court lacks jurisdiction; section 29 of the Wakf Act gives the Kadhi's court first-instance jurisdiction over wakf matters.
While the ELC is a superior court with jurisdiction over land disputes under the Environment and Land Court Act, the Wakf Act expressly vests first-instance jurisdiction over wakf matters in the Kadhi's court. The court adopted the holding in Ali & 22 others v Said and the Lillian S principle that jurisdiction is everything and a court without jurisdiction must down its tools.
Order 2 Rule 15 objection on evidence
The objection fails; the application did not rest solely on sub-rule (1)(a), so evidence was properly admissible.
Order 2 Rule 15(2) bars evidence only on applications under sub-rule (1)(a) for failure to disclose a reasonable cause of action. The defendant's application invoked multiple grounds including scandalous, frivolous and vexatious pleadings and abuse of process, so evidence was admissible.
Legal principles established
#- Section 29 of the Wakf Act confers first-instance jurisdiction over wakf matters on the Kadhi's court.
- Trusteeship under the wakf deed is not a right in rem and does not pass by succession; vacancies are filled by appointment by surviving trustees under clause 9.
- Evidence is admissible on a striking-out application under Order 2 Rule 15(1)(b)-(d); the bar on evidence applies only to applications under sub-rule (1)(a).
Court orders
#- 1.The defendants' notice of motion dated the 2nd October 2024 is allowed as prayed.
- 2.The plaintiff's suit commenced through the plaint dated the 24th May 2024 is struck out.
- 3.The plaintiff to pay the defendants' costs.
- Jurisdiction invoked
- Environment and Land Court Act, section 13; Article 162(2)(b)/163(2)(b) of the Constitution; section 29 of the Wakf Act (Kadhi's court as court of first instance for wakf matters)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Hamed v Mohamed & another (Environment & Land Case E049 of 2024) [2025] KEELC 1021 (KLR)", Case Analysis (2025). ELC Case (Notice of Motion dated 2nd October 2024; plaint dated 24th May 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1021/eng@2025-03-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.