Omar (Suing on his behalf and as legal representative of the Estates of Sakinabal Ali Mohamed - Deceased) v Intergra Auctioneers (K) Company & 3 others (Environment & Land Case 231 of 2021) [2025] KEELC 1330 (KLR)
The bottom line
#A Kenyan court struck out a challenge to a property auction because the plaintiff's limited probate grant did not authorize him to sue, clearing the bank to sell.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Who is the sole proprietor of the suit property known as Mombasa/Block XLI/156 and whether the Plaintiff has the locus standi to prosecute this suit
- 2.Whether there was fraud, illegality or irregularity on the part of the 2nd Defendant
- 3.Whether the Plaintiff is entitled to the orders sought in the Plaint
- 4.Whether the 2nd Defendant is entitled to the orders sought in the Amended Counter-Claim
- 5.Who bears the costs of the Plaint and the Amended Counter-Claim
Key legal issues
#Locus standi on a limited grant ad colligenda bona
The Plaintiff lacked capacity to file suit. A grant ad colligenda is limited to collection and preservation of assets under Section 67(1) of the Law of Succession Act and Rule 36 of the Probate and Administration Rules; it does not confer authority to sue, and the grant here was not rectified to include institution of suit.
The court traced the statutory purpose of grants ad colligenda bona, citing Rule 36(2) of the Probate and Administration Rules limiting such grants to collecting and preserving the estate, and the Court of Appeal decision in Morjaria v Abdalla holding that such a grant cannot include the right to stand in the shoes of the deceased for instituting an action. The grant's wording did not cover filing suit and no rectification was shown; consequently all proceedings were a nullity.
Fraud alleged against the 2nd Defendant
The claim of fraud, illegality and irregularity was not established; the suit was struck out on locus standi alone, so the fraud allegations fell away without determination on merits.
The court noted the pleading and evidentiary burden under Section 107 of the Evidence Act and Order 2 Rule 10(1)(a) of the Civil Procedure Rules, citing Vijay Morjaria and Arthi Highway Developers on the heightened standard of proof for fraud. Since the suit was struck out on the sole ground of want of locus standi, the fraud allegations could not be claimed.
The 2nd Defendant's Amended Counter-Claim
The 2nd Defendant was granted all prayers in the Amended Counter-Claim save for general and exemplary damages; declarations of legal and equitable charge over the suit property were issued with liberty to proceed with sale.
The court accepted the 2nd Defendant's evidence of the 1991 credit facility of Kshs. 800,000 secured by a third-party legal charge registered on 16th October 1991, the default since 1993, and the statutory power of sale under Section 96(1) of the Land Act. Exemplary damages were refused as the recognised categories in Rookes v Barnard were not met.
Costs
Costs follow the event; the successful 2nd Defendant was awarded costs of both the struck-out Plaint and the Counter-Claim.
Relying on Section 27(1) of the Civil Procedure Act and authorities including Party of Independent Candidate of Kenya v Mutula Kilonzo, the court held costs are discretionary but presumptively follow the outcome; since the Plaintiff lacked locus standi and the 2nd Defendant succeeded on the Counter-Claim, the 2nd Defendant was entitled to costs.
Legal principles established
#- A grant of letters of administration ad colligenda bona does not clothe a grantee with locus standi to institute a suit unless the grant is expressly tailored or rectified for that purpose.
- Locus standi is not a technicality but goes to the root of the case; proceedings prosecuted without it are a nullity.
- Fraud must be specifically pleaded and proved to a standard above a balance of probabilities but below beyond reasonable doubt.
Court orders
#- 1.Judgment entered in favour of the 2nd Defendant with respect to the Amended Counter-Claim dated 1st February, 2024
- 2.The Plaintiff's suit as per the Plaint dated 18th November, 2021 struck out on the grounds that the Plaintiff has no legal capacity (locus standi) to institute the suit
- 3.A declaration issued that the 2nd Defendant holds a Legal Charge over all that property known as Title Number Mombasa Block XLI/156 and is at liberty to proceed with the sale of the said property
- 4.A declaration issued that the 2nd Defendant holds an Equitable Charge over all that property known as Title Number Mombasa Block XLI/156 and is at liberty to proceed with the sale of the said property
- 5.Costs of the struck-out Plaint and the Amended Counter-Claim awarded to the 2nd Defendant, to be borne by the Plaintiff
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over land parcel Mombasa/Block XLI/156 (Articles 162(2)(b) and 165 framework, pleaded as ELC suit); no specific provision cited in the judgment
Relief refused
#Plaintiff's prayers for declaration that the notification of sale was fraudulent, illegal, null and void and for permanent injunction restraining sale of the suit property
The Plaintiff, suing on a grant ad colligenda bona not tailored for institution of suit, lacked locus standi; the suit was struck out entirely
2nd Defendant's prayer for general and exemplary damages for misrepresentation
None of the recognised categories for exemplary damages (oppressive/arbitrary/unconstitutional state action, profit-calculating conduct, or statutory authorisation) were established
Costs
Costs of the struck-out Plaint and the Amended Counter-Claim awarded to the 2nd Defendant, to be borne by the Plaintiff.
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 Judgment be and is hereby entered in favour of the 2nd Defendant with respect to the Amended Counter - Claim dated 1st February, 2024.
That the Plaintiff's suit as per the Plaint dated 18th November, 2021 be and is hereby struck out on the grounds that the Plaintiff has no legal capacity ("Locus Standi") to institute this suit.
That a declaration do and is hereby issued that the 2nd Defendant holds a Legal Charge over all that property knows as Tide Number Mombasa Block XLI/156 and the 2nd Defendant is at liberty to proceed with the sale of the said property.
That the costs of the struck-out Plaint and the Amended Counter – Claim be awarded to 2nd Defendant to be borne by the Plaintifis herein.
It is the finding of the Court that the Plaintiff having filed suit on the basis of a grant ad colligenda is not clothe with locus to file suit.
If an act is void, it is in law a nullity. It is not only bad, but incurably bad.
Issues in the judgment
#Date of death of Abdalla Haji Mohamed Sameja stated inconsistently within the judgment (20th January 1988 in the Plaint narrative, 20th January 1998 in the submissions/analysis passages)
Amount claimed stated inconsistently within the judgment (Kshs. 16,319,797 vs Kshs. 16,391,797 and other variants)
The court refers to striking out the suit for want of locus standi while describing it as a finding that the plaintiff 'has not established his case' against the Defendants
Judgment refers in its analysis to decisions of 'Peter Owade Ogwang' and provisions 'Section 69 and Rule 35' not otherwise cited or listed in the authorities
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Omar (Suing on his behalf and as legal representative of the Estates of Sakinabal Ali Mohamed - Deceased) v Intergra Auctioneers (K) Company & 3 others (Environment & Land Case 231 of 2021) [2025] KEELC 1330 (KLR)", Case Analysis (2025). Mombasa ELC Civil Suit (Plaint dated 18th November, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1330/eng@2025-03-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.