https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4680

MAA (Suing as Manager and Guardian to YMAD - Patient) v Mohamed (Interim Administrator in Respect of the Estate of Said Bin Awadh & Hamid Bin Damnam Alias Awadh Bin Ahmed Bin Damnam) (Enviromental and Land Originating Summons E001 of 2023) [2026] KEELC 4680 (KLR) (23 July 2026) (Ruling) Neutral citation: [2026] KEELC 4680 (KLR) Republic of Kenya In the Environment and Land Court at Mombasa Enviromental and Land Originating Summons E001 of 2023 JO Olola, J July 23, 2026 Between MAA (Suing as Manager and Guardian to YMAD - Patient) Plaintiff and Mohamed Salim Mohamed (Interim Administrator in Respect of the Estate of Said Bin Awadh & Hamid Bin Damnam Alias Awadh Bin Ahmed Bin Damnam) Defendant Ruling 1.By the Notice of Motion dated 16th May 2025, Mohamed Salim Mohamed sued in his capacity as the Interim Administrator of the Estate of Said Bin Awadh and Hamid Bin Damnam alias Awadh Bin Ahmed Bin Damnam (the Defendant /Applicant) prays for an order that this Court be pleased to review its Ruling dated 5th June 2024 dismissing the Applicant’s Notice of Motion dated 6th November 2023 in its entirely. 2.The application is supported by an Affidavit sworn by the Defendant and is premised on the grounds inter alia, that;i.The Applicant herein has been sued herein in his former capacity as the Interim Administrator of the Estate of the said Bin Awadh and Hamid Bin Damnam;ii.The appointment of the Applicant as the Interim Administrator by the Kadhi’s Court was contested by the Respondent herein in an Appeal at the High Court at Mombasa;iii.Vide its Judgment delivered on 21st February 2025, the High Court referred the matter back to the Kadhi’s Court differently constituted for fresh hearing;iv.That the Applicant’s Motion dated 6th November 2023 seeking to strike out this suit was inter alia premised on the fact that the High Court had stayed the Applicant’s appointment as the Interim Administrator of the Estate pending the hearing and determination of the subject appeal, and thus the Applicant averred that he had no capacity to be sued herein under the law;v.That by dint of the said High Court judgment, it is now beyond contestation that the Applicant herein has been divested of any lawful capacity to represent the deceased;vi.That were the suit herein to proceed for hearing, it would amount to an absurdity in law, and the same would be contrary to all established norms on representation and parties capacity either to sue or be sued in legal proceedings; andvii.That in the premises, there exists sufficient reason to invoke the review jurisdiction of this Honourable Court and have the proceedings herein terminated for want of capacity to defend on the part of Defendant/Applicant. 3.MAA, suing as the Manager and Guardian to YMAD (the Plaintiff /Respondent) is opposed to the application. In his Replying Affidavit sworn on 24th May 2025, the Plaintiff avers that the Defendant was sued as the Interim Administrator and that the same was contested in Kadhi’s Court Succession Cause No. 268 of 2019. The Plaintiff thereafter instituted a successful appeal and the matter was referred back to the Kadhi’s Court. 4.The Plaintiff avers that the Defendant is misleading the Court since in Miscellaneous Application No. E4 of 2023 it is one Mohamed Salim Mohamed who was appointed as the Interim Administrator of the Estate of Said Bin Awadh. The order has never been appealed or varied. 5.The Plaintiff further avers that the Defendant has not annexed the order that should be reviewed. In addition, he avers that there is no order of stay granted in relation to the status of the Defendant being an Interim Administrator. 6.I have carefully perused and considered both the application as filed by the Defendant as well as the response thereto by the Plaintiff. I have similarly perused and considered the submissions placed before Court by the Learned Advocates representing the parties. 7.By this application before the Court, the Defendant prays for an order that this Court be pleased to review the Ruling delivered herein on 5th June 2024 that dismissed the Defendant’s application dated 6th November 2023 in its entirety. It is the Defendant’s case that he has been sued herein in his former capacity as the Interim Administrator of the Estate of Said Bin Awadh and Hamid Bin Damnan. 8.It is the Defendant’s case that following a Judgment delivered by the High Court on 21st February 2025, he has since been divested of any lawful capacity to represent the deceased and hence the suit against him has become an absurdity in law. 9.Order 45 Rule 1 (1) of the Civil Procedure Rules, 2010 sets out the grounds for review and provides a follows:“(1)Any person considering himself aggrieved—(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the Court which passed the decree or made the order without unreasonable delay.” 10.By the Notice of Motion dated 6th November 2023, the Defendant had sought for an order that the Court be pleased to strike out the suit against himself for failure to disclose any cause of action against himself. It was the Defendant’s case that he had been sued as the Interim Administrator of the Estates of the deceased yet in the pleadings it was the deceased who were long dead, who had been invited to appear and defend the proceedings. 11.The Defendant further asserted in the said application that in a Ruling delivered on 4th August 2023 in Mombasa High Court Civil Appeal No. 109 of 2023, his appointment as the Interim Administrator of the aforesaid estate had been stayed following an application made by the Plaintiff and the Defendant therefore lacked the capacity to sue or to be sued over the suit property that forms part of the estate of the deceased. 12.Having considered the said application and in a Ruling delivered herein on 5th June 2024, the Hon. Justice L. L. Naikuni did not find merit in the said application and proceeded to dismiss it in its entirely. 13.Some eleven (11) months later, the Defendant instituted this present application asserting once more than he had been wrongly sued as the High Court had by a judgment delivered on 21st February 2025 referred the matter back to the Kadhi’s Court for hearing by a different Kadhi other than Hon. Habib Salim Vumbi who had appointed the Defendant as the Interim Administrator of the estate. 14.From the material placed before the Court, I was not persuaded that the judgment delivered on 21st February 2025 amounted to new evidence that could not have been discovered after the exercise of due diligence as required under Order 45 Rule 1 (1) of the Civil Procedure Rules to warrant an order of review. The said judgment did not set aside the appointment of the Defendant as an Interim Administrator of the estate of the deceased. It was also clear to me that the stay orders issued by the High Court were in regard to execution of the decree and not the appointment of the Defendant as in Interim Administrator. 15.In the circumstances herein, I was also not persuaded that there was an error or omission apparent on the face of the record to warrant the Court to exercise its discretion in favour of the Defendant. 16.The upshot is that I did not find any merit in the Motion dated 16th May 2025. The same is hereby dismissed with cost to the Plaintiff. RULING DATED, SIGNED AND DELIVERED IN OPEN COURT AND VIRTUALLY AT MOMBASA THIS 23RD DAY OF JULY, 2026.…………………………..J.O. OLOLAJUDGEIn the presence of:Ms. Firdaus Court Assistant.Mr. Tindi Advocate for the PlaintiffMr. Oloo Advocate for the Defendant