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ELCPartially AllowedNot stated in the judgment· [2026] KEELC 1065 (KLR)

Kasmani (Suing as lawful attorney and agent Of Asgarali Abdulshakur Kasmani) v Kasmani & 2 others (Land Case E285 of 2025) [2026] KEELC 1065 (KLR)

Environment and Land Court
26 February 2026
4,520 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a family trust claim for now, but froze the disputed Parklands property until the full case is heard.

What this practically means

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Executive summary

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The plaintiff, son and attorney of the principal Asgarali Abdulshakur Kasmani, moved the court by notice of motion dated 10th June, 2025 seeking interim orders including temporary injunctions restraining the 1st defendant, his elder brother, from dealing with family properties allegedly held in a verbal trust under Islamic law; an order for accounts; surrender of trust documents; restoration of access to the Parklands family home (LR 1870/1/347); and police enforcement. The plaintiff alleged the 1st defendant repudiated the trust, claimed absolute ownership, and coerced the principal into a deed of settlement of Kshs.78,000,000/- executed without capacity. The 1st defendant filed a replying affidavit denying the trust, asserting he acquired the properties with his own funds, and a preliminary objection dated 18th August, 2025 on four grounds: lack of jurisdiction over Dubai properties; mootness of the resulting trust claim over the Parklands property given the registered express trust; irreversibility of a completed gift; and fatal defectiveness of the suit. The court dismissed the preliminary objection, finding none of the grounds met the Mukisa Biscuit test of a pure point of law. It then dismissed the notice of motion, holding that the plaintiff had not proven the claimed family trust or his legal right, and that a trust is never presumed but must be pleaded and proved. However, exercising the balance of convenience, the court ordered maintenance of status quo: the 1st defendant not to transact on, sub-divide or alienate LR 1870/1/347 pending full hearing. No orders as to costs were made.

Key legal issues

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01

Whether the preliminary objection met the Mukisa Biscuit test

Holding

The preliminary objection failed all four grounds and was dismissed

Reasoning

The first ground on Dubai properties could not dispose of the suit since other suit properties lie within the court's jurisdiction. The second ground failed because several trusts can exist over one title, some unregistered. The third ground required factual determination of whether a gift occurred, which is outside a preliminary objection. The fourth ground was ambiguous with no fatality established.

p. 6
02

Whether the plaintiff established a prima facie case for an injunction

Holding

No - the plaintiff had not proven the claimed trust or legal right over the Parklands property

Reasoning

The title shows the 1st defendant registered as trustee of his son Uwais Abdul Shakur Kasmani. The plaintiff's claim of a broader family trust was unproven at the interlocutory stage. The court balanced the registered trustee's rights against preservation of the suit property and found the balance of convenience favoured a status quo order rather than a full injunction.

p. 7
03

Whether accounts and surrender of documents could be ordered at the interlocutory stage

Holding

No - the existence of the alleged customary trust under Islamic law must first be proven

Reasoning

Citing Richard Nyamemba Auka and Juletabi African Adventure, the court held that the existence of a trust is a matter of fact that must be pleaded, particularized and proved; the court never presumes a trust. Since the trust claim remained undetermined, the court could not assume its existence and compel the registered owner to account or surrender documents.

p. 8

Legal principles established

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  • A preliminary objection must be a pure point of law, argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised if any fact has to be ascertained or judicial discretion exercised
  • A trust, whether customary or constructive, is never implied by the court; the party relying on its existence must plead, particularize and prove it through evidence
  • 'Status quo' means the present state of affairs at the time the order is made, and such an order must be specific and descriptive

Court orders

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  1. 1.The notice of preliminary objection dated 18th August, 2025 is dismissed
  2. 2.The notice of motion dated 10th June, 2025 is dismissed
  3. 3.Status quo be maintained pending the hearing and determination of the suit - specifically, the 1st defendant/respondent not to make any further transactions on LR 1870/1/347, such as sub-division or alienation, and to preserve it pending full hearing
  4. 4.No orders as to costs
Jurisdiction invoked
Original civil jurisdiction; application brought under Order 40 Rules 1, 2, 3, 4 and 10 and Order 51 Rule 1 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kasmani (Suing as lawful attorney and agent Of Asgarali Abdulshakur Kasmani) v Kasmani & 2 others (Land Case E285 of 2025) [2026] KEELC 1065 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1065/eng@2026-02-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.