[2012] KEHC 2316 (KLR)

[2012] KEHC 2316 (KLR)

The court found that the application for a vesting order could not be sustained because the underlying proceedings in the Kadhi's Court, which gave rise to the decree and subsequent auction, were tainted by irregularity. Specifically, the plaintiff's counsel in those proceedings was not qualified to practice as an advocate of the High Court of Kenya, rendering the proceedings and resulting orders deficient in validity. The applicant's own admissions in his supplementary affidavit confirmed this irregularity. Consequently, the substratum supporting the application was invalid, and the court dismissed the application for a vesting order. Each party was ordered to bear their own costs, and...

Citation
[2012] KEHC 2316 (KLR)
Parties
Applicant: Mohamed Abbas Ali; Respondent: Swalha Jabur
Court
High Court
Court Station
High Court at Malindi
Jurisdiction
Kenya
Judgment Date
27 July 2012
Case Number
Miscellaneous Civil Application 39 of 2009
Procedural Posture
Miscellaneous Application / Ruling on Application for Vesting Order
Outcome
application dismissed
Judges
CW Meoli
Legal Topics
Vesting Orders, Public Auction, Execution of Decree, Kadhi Court Proceedings
Source Language
English
Civil Procedure Land and Property Vesting Orders Public Auction Execution of Decree Kadhi Court Proceedings

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 2 Party arguments 2
Sign in to unlock

Parties

Mohamed Abbas Ali

Applicant

Swalha Jabur

Respondent

Procedural Posture

Miscellaneous Application / Ruling on Application for Vesting Order

Legal Issues

  1. 1 Whether the applicant is entitled to a vesting order for LR BLOCK 412 Malindi purchased at public auction.
  2. 2 Whether the execution of the decree was valid given the alleged stay of execution and irregularities in the Kadhi's Court proceedings.
  3. 3 Whether an order made in proceedings where counsel was unqualified is valid.

Ratio Decidendi

The court found that the application for a vesting order could not be sustained because the underlying proceedings in the Kadhi's Court, which gave rise to the decree and subsequent auction, were tainted by irregularity. Specifically, the plaintiff's counsel in those proceedings was not qualified to practice as an advocate of the High Court of Kenya, rendering the proceedings and resulting orders deficient in validity. The applicant's own admissions in his supplementary affidavit confirmed this irregularity. Consequently, the substratum supporting the application was invalid, and the court dismissed the application for a vesting order. Each party was ordered to bear their own costs, and...

Court Disposition

application dismissed

Orders

  • The application for a vesting order is dismissed.
  • Each party will bear their own costs.