[2022] KEELC 1173 (KLR)
The court held that it cannot proceed with the application for injunctive orders or determine the preliminary objection without first ascertaining whether the defendant is indeed deceased. The evidence provided by the respondent, namely the filing of a succession cause, is not sufficient proof of death in the...
Source-derived case information.
- Citation
- [2022] KEELC 1173 (KLR)
- Parties
- Plaintiff: Joseph Nyamumbo Obiri; Defendant: Ebado Elmi; Respondent: Mohamed Ali Ibrahim
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E381 of 2021
- Procedural Posture
- Interlocutory Application / Interim Ruling on Notice of Motion and Preliminary Objection
- Outcome
- interim directions issued; application and preliminary objection held in abeyance
- Judges
- LN Mbugua
- Legal Topics
- Injunctive Relief, Succession and Estates, Locus Standi, Status of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Nyamumbo Obiri
Plaintiff
Ebado Elmi
Defendant
Mohamed Ali Ibrahim
Respondent
Procedural Posture
Interlocutory Application / Interim Ruling on Notice of Motion and Preliminary Objection
Legal Issues
- 1 Whether injunctive orders can be granted against a deceased defendant.
- 2 Whether the suit can be sustained in light of the defendant's alleged death.
- 3 Whether the respondent has provided sufficient proof of the defendant's death.
Ratio Decidendi
The court held that it cannot proceed with the application for injunctive orders or determine the preliminary objection without first ascertaining whether the defendant is indeed deceased. The evidence provided by the respondent, namely the filing of a succession cause, is not sufficient proof of death in the absence of a death certificate. The court directed the respondent to produce the death certificate to conclusively establish the defendant's status before any further proceedings can be taken. The court emphasized the gravity of matters involving the death of a party and the necessity for proper procedure and evidence before making substantive determinations affecting the parties'...
Court Disposition
interim directions issued; application and preliminary objection held in abeyance
Orders
- The respondent, Mohamed Ali Ibrahim, is directed to avail the death certificate of the deceased defendant forthwith.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
ELC CASE NO. E381 OF 2021
JOSEPH NYAMUMBO OBIRI................PLAINTIFF
VERSUS
EBADO ELMI........................................DEFENDANT
INTERIM RULING
1. This court was to determination a Notice of Motion application dated 10th November 2021 filed by the plaintiff who is seeking injunctive orders against the defendant in respect of a parcel of land, Reference Number 36/II/98, Eastleigh, Nairobi.
2. A certain Respondent identified as Mohamed Ali Ibrahim has filed a replying affidavit, grounds of opposition as well as a Preliminary objection dated 8. 12. 2021 where he avers that the defendant died on 10th Day of October 1990,hence the suit cannot be sustained. The court was also to determine the preliminary objection too.
3. The Respondent, Mohamed Ibrahim who is apparently a relative of the Defendant states that he has applied for letters of administration in respect of the estate of the deceased Defendant.
4. I find that matters of death are grave and ought to be handled as such. The Respondent has availed a document indicating that he has filed a succession Cause No. E042 OF 2021 before the Kadhi’s court in Nairobi. This is however not a grant of letters of administration. On the other hand, the Plaintiff avers that the suit land is in the name of the Defendant, and so are the documents of approvals of the development. The court cannot determine the status of the Defendant based on the aforementioned material availed to this court. Similarly, the court cannot proceed further without ascertaining the issue as to whether Defendant is a deceased person.
5. In that regard, I direct that the person presenting himself as the Respondent, Mohamed Ali Ibrahim to avail the death certificate of the deceased forth with.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 24TH DAY OF FEBRUARY, 2022 THROUGH MICROSOFT TEAMS.
LUCY N. MBUGUA
JUDGE
In the presence of:-
Mutunga holding brief for Nyamweya for Plaintiff/Plaintiff
Nyanyuki holding brief for Itemere for the Defendant
Court Assistant: Eddel Barasa