[2021] KEELC 552 (KLR)
The court held that the issue of whether the plaintiff has locus standi and whether a customary trust exists are matters that require evidence and cannot be determined at the preliminary stage. The objection raised by the 2nd Defendant, premised on the lack of grant of representation and alleged procedural defects,...
Source-derived case information.
- Citation
- [2021] KEELC 552 (KLR)
- Parties
- Plaintiff: Zuwena Omar Somobwana; Defendant: Gaffer Omar Somobwana; Defendant: Kidogo Basi Housing Cooperative
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 137 of 2021
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection overruled
- Judges
- NA Matheka
- Legal Topics
- Locus Standi, Customary Trusts, Succession Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zuwena Omar Somobwana
Plaintiff
Gaffer Omar Somobwana
Defendant
Kidogo Basi Housing Cooperative
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the plaintiff has locus standi to institute the suit on behalf of the deceased without a grant of representation.
- 2 Whether the suit is fatally defective for want of compliance with the Laws of Succession Act.
- 3 Whether the question of trust under Section 28 of the Land Registration Act is a matter for trial.
Ratio Decidendi
The court held that the issue of whether the plaintiff has locus standi and whether a customary trust exists are matters that require evidence and cannot be determined at the preliminary stage. The objection raised by the 2nd Defendant, premised on the lack of grant of representation and alleged procedural defects, was found to be unmerited. The court determined that the question of trust under Section 28 of the Land Registration Act is substantive and should be resolved at trial after the parties have presented their evidence. Accordingly, the preliminary objection was overruled and costs were ordered to be in the cause.
Court Disposition
preliminary objection overruled
Orders
- The preliminary objection is overruled.
- Costs to be in the cause.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENTAL AND LAND COURT AT MOMBASA
ELC CASE NO 137 OF 2021
ZUWENA OMAR SOMOBWANA..............................................PLAINTIFF
VERSUS
GAFFER OMAR SOMOBWANA....................................1ST DEFENDANT
KIDOGO BASI HOUSING COOPERATIVE...............2ND DEFENDANT
RULING
By a notice dated 3rd August 2021 the 2nd Defendant raised a preliminary objection on the following points;
1. That he application is misconceived, bad in law and an abuse of the court process.
2. That the Plaintiff does not have the requisite locus standi to institute this suit and should therefore be struck out with costs.
3. That the Plaintiff has instituted the suit on behalf of his Deceased father, the late Omar Somobwana Omar without having being issued with a Grant of Letter of Administration Intestate, Grant of Probate and Grant of Ad Litem, whose action is contrary to the provision of the Laws of Succession Act.
4. That without prejudice to the above, the suit herein is incompetent, incurably and fatally defective and as such ought to be struck out.
5. That the suit against the 2nd Defendant ought to be dismissed with costs to the above named 2nd Defendant.
The Plaintiff submitted that she gave the factual background of her claim in relation to the movement of the suit property which so far is not denied. Under Section 28 of the Land Registration Act No.3 of 2012 whether the 1st Defendant is holding the suit property in a trust is the question to be determined by this Honourable court after deduction of evidence. The Plaintiff humbly submit that the 2nd Defendant is erroneously attempting to turn proceedings under section 28 of the land Act which are properly before this court. That the suit is properly before this court under the aforesaid provisions of the law.
This court has considered the preliminary objection and the submissions therein.The 2nd Defendant submits that the Plaintiff has instituted the suit on behalf of her deceased father, the late Omar Somobwana Omar without having being issued with a Grant of Letter of Administration Intestate, Grant of Probate and Grant of Ad Litem, whose action is contrary to the provision of the Laws of Succession Act. The plaintiff argues that she gave the factual background of her claim in relation to the movement of the suit property which so far is not denied and is claiming under Section 28 of the Land Registration Act No.3 of 2012, that is customary trust. I find this is a matter of evidence which will have to be established during the trial. I find that the objection is not merited and the same is overruled. Cost to be in the cause.
It is so ordered.
DELIVERED, DATED AND SIGNED AT MOMBASA THIS 8TH DECEMBER 2021.
N.A. MATHEKA
JUDGE