[2013] KEHC 1444 (KLR)
The court found that the issue of whether letters of administration are required before filing the suit cannot be resolved without examining material facts, such as whether the parties were married under Mohamedan Law and whether such letters are required under that legal regime. Since the preliminary objection...
Source-derived case information.
- Citation
- [2013] KEHC 1444 (KLR)
- Parties
- Plaintiff: Salma Said Salim; Plaintiff: Faiza Mohamed Salim; Defendant: Feisal Said Salim; Defendant: Faiza Mohamed Salim
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 184 of 2012
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed with costs
- Judges
- GO Shikwe
- Legal Topics
- Locus Standi, Preliminary Objection, Muslim Estate Succession, Letters of Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Salma Said Salim
Plaintiff
Faiza Mohamed Salim
Plaintiff
Feisal Said Salim
Defendant
Faiza Mohamed Salim
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the plaintiff has locus standi to institute the suit without letters of administration to the estate of the deceased.
- 2 Whether letters of administration are required for suits involving Muslim estates under Mohamedan Law.
- 3 Whether the preliminary objection raises pure points of law or involves matters of fact.
Ratio Decidendi
The court found that the issue of whether letters of administration are required before filing the suit cannot be resolved without examining material facts, such as whether the parties were married under Mohamedan Law and whether such letters are required under that legal regime. Since the preliminary objection touches on matters of fact and not solely on points of law, it does not meet the threshold for a preliminary objection as established in Mukhisa Biscuit – Vs- Tobacco Wholesalers. Furthermore, the court accepted the argument that, in the context of Muslim estates, letters of administration are not a legal prerequisite for instituting a suit. Consequently, the preliminary objection...
Court Disposition
preliminary objection dismissed with costs
Orders
- The preliminary objection is dismissed with costs to the plaintiff.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO. 184 OF 2012
SALMA SAID SALIM
FAIZA MOHAMED SALIM ….....................…………..................PLAINTIFFS
VERSUS
FEISAL SAID SALIM
FAIZA MOHAMED SALIM ………............................…….…DEFENDANTS
RULING
The preliminary objection is to the effect that the plaintiff herein has no locus standi to institute the suit against the Defendants.
The grounds are that in their supporting affidavit the 1st Plaintiff states that she is the legal wife of the Deceased and that it is her husband who purchased the property in question.
It is contended that it is not shown whether she had obtained letters of administration to the estate of the Deceased and if so none has been annexed to the supporting affidavit.
It is submitted that the suit is incompetent and should be struck out with costs.
The preliminary objection is opposed on the grounds that the plaintiff is a Muslim and was married to the Deceased under the Mohamedan Law.
Further that the provisions of the Law of Succession do not apply to Muslims. That there is no law in placing an obligation to a person claiming as a legal representative in a Muslim Estate to obtain letters of administration before instituting a suit because the Kadhi Court does not grant letters of administration. Counsel for the Respondent has cited the Misc High Court Application No. 736 of 2011. In the matter of the Estate of Said Abdalla (Deceased) where it was held that letters of administration are not a requirement in the Estate of Muslim deceased persons.
Further that the preliminary objection does not confide itself on matters of law only.
As argued by Counsel for the Respondent the issue as to whether letters of administration are required before filing this suit cannot be resolved without interrogating other material facts as to whether parties were married under the Mohamedan Law and if so whether letters of administration are required under the Mohamedan legal regime. The preliminary objection therefore does touch on matters of fact and therefore does not meet the threshold of a preliminary objection as required under the case of Mukhisa Biscuit – Vs- Tobacco Wholesalers.
The preliminary objection has no merit and it is dismissed with costs.
Ruling delivered dated and signed this 5th day of November, 2013.
…..................
M. MUYA
JUDGE
5TH NOVEMBER, 2013
In the presence of:-
Learned Counsel for the applicant Mr. Mwahim holding brief Hamze
Learned Counsel for the Respondent
Court clerk Mr. Musundi