1. The Hon Abdiaziz Maalim Mohamed, PK, delivered a ruling on 3rd September 2024 in respect of an application dated 4th June 2024, by which the Appellants sought orders that the Court's proceedings be set aside, that the order issued by the Court on 31st January 2024 be set aside, and that the Interested Party account for the rental proceeds of the estate from 210 (sic!) to 1st June 2024.
2. Being aggrieved by the said decision, the Appellants appealed to this Court. The Appellants filed a Memorandum of Appeal dated 24th September 2024. The Appeal raises 7 grounds of Appeal, which I shall set out below:
1. That the learned Kadhi erred in law and fact by finding that the Appellants can only access and/or request the account of the deceased after the death but not prior to his death for assessment;
2. That the learned Kadhi erred in law and fact by failing to set aside the orders issued on 31" January 2024 by erroneously finding that the Appellants did not give any proper grounds for the setting aside of the orders;
3. That the learned Kadhi erred in law and fact by disregarding the constitution on the right to a fair hearing and by going ahead to dismiss the Appellants' application by not giving a consideration that the matter in question has been done ex-parte and orders against the wishes of the Appellants obtained ex-parte and that it is only fair to set aside the said orders and give the Appellants a fair hearing as they have equal rights with those of the 1st and 2nd Respondents;
4. That the learned Kadhi erred in law and fact by allowing distribution of the rents collected before administration of the deceased estate is done, despite the respondents not giving out any special reasons or circumstances necessitating distribution of the rental proceeds;
5. That the learned Kadhi erred in law and fact by allowing the firm of Balala &Abed Advocates to collect and distribute rental proceeds unilaterally without considering that the Appellants, as beneficiaries, were not consulted on the same and neither did they give consent to the firm of Balala & Abed Advocates to collect and distribute proceeds of the deceased estate;
6. That the learned Kadhi erred in law and fact by failing to appreciate the Appellants' submissions and to consider the relevant circumstances of the case, thereby leading him to make the wrong findings; and
7. That the learned Kadhi erred in law and fact by finding that the Appellants should bear the cost of the application, whereas both applications were dismissed; hence, it is in the interest of justice that each party bears their own cost.
3. The Appellants therefore sought to have the appeal allowed, the proceedings and the subsequent decision delivered on 3rd September 2024 set aside, and costs awarded to them.
4. The instant appeal, arising as it does from the decision of the Hon Kadhi, was considered by this Judge, sitting with two Kadhis as assessors, pursuant to section 65(1)(c) of the Civil Procedure Act. The appeal was heard on 16th October 2025. The parties also filed written submissions which this Court has considered.
5. The submissions of the Appellants are dated 28th August 2025. The Appellants identified the issues for determination as being whether there had been a fair hearing before the Kadhi and if there was intermeddling.
6. In respect of the first issue, it was urged that since the estate of the deceased has many beneficiaries, the Court ought to have granted the Appellants an opportunity to present their case. The Appellants’ counsel denied that there was proper service of the court process. Counsel referred to the case of Waweru v Maina [2025] KECA 50 (KLR) where the Court of Appeal stated as follows:
“When confronted with an application to set aside a default or ex parte judgment, therefore, the first task of a trial court is to determine if the default judgment is an irregular or regular one. If it is the former, the trial court must set aside the default judgment as a matter of right. If it is the latter, the trial court has unfettered discretion to determine if there is good cause and may set the default judgment aside if it so finds.”
7. With respect to the second issue, the Appellants’ counsel submitted that there had been intermeddling with the deceased’s estate. Counsel therefore prayed that the Appeal be allowed.
8. Submissions from the Respondents were filed by their counsel on 12th September 2025. Counsel provided a brief background to the matter. They identified a single issue for determination, namely whether the Court below had jurisdiction to give interim orders preserving the estate of the deceased.
9. It was urged that the Interested Party had been collecting the rents even before the deceased's death and that it would be absurd to introduce new parties at a late stage. Further, prior to the issuance of the orders, the consent of the Interested Party was sought and obtained. Counsel submitted that none of the beneficiaries had been prejudiced by the fact that the Interested Party was collecting rent.
10. Counsel submitted that the Hon Kadhi was empowered under Rule 112(3) of the Kadhis Court Rules to issue the orders that he did.
11. The Respondents’ counsel therefore urged this Court to dismiss the appeal, with costs to the Respondents.
12. This is a first appeal. It is an appeal against a decision of the Hon Kadhi in an interlocutory matter. The principles that guide this Court when determining interlocutory appeals are similar to those that the Court of Appeal applies when considering second appeals.
13. In Mbogo & another v Shah [1968] EA 93, the court held that:-
“That this court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”
14. I have carefully considered the Record of Appeal and the parties' submissions, and have taken note of the opinions of the Hon Kadhis who sat with me as assessors. In my view, the issues for determination are: whether there was a fair hearing; and who has the right to appoint an agent to collect rents after the demise of the deceased.
15. According to the court records, the beneficiaries of the estate of the late Mohamed Abdalla Balala are seven: six siblings and the widow. Of the seven beneficiaries, only 2 filed an application seeking orders that the Interested Party continue collecting rents from the estate of the deceased.
16. The legal imperative to hear a person who is likely to be affected by a decision before the decision is made cannot be overstated. The Court of Appeal, in Mbaki & Others v. Macharia & Another [2005] 2 EA 206, at page 210, stated as follows:
"The right to be heard is a valued right. It would offend all notions of justice if the rights of a party were to be prejudiced or affected without the party being afforded an opportunity to be heard."
17. The Holy Quran 4:58 sets out the basis of the judicial system as the principle of justice and says:
"Whenever you rule among the people, judge with justice."
18. It is self-evident from the above verse that it is in the interest of justice for each party to be given an opportunity to present his/her case, and for a determination to be made according to the evidence, facts and the applicable law.
19. The Holy Quran 16:90 says as follows:
"God commands justice, the doing of good, and liberality to kith and kin, and He forbids shameful deeds, and injustice and rebellion: He instructs you that ye may receive admonition."
20. The Prophet Mohamed (S.A.W) was just, and he also ordered his followers to be just
21. The Holy Quran 5:8 says as follows:
"O ye who believe! Stand out firmly for God, as witnesses to fair dealing, and let not the hatred of others make you swerve to wrong and depart from justice. Be just (and įudge justly): that is next to piety: and fear God. For God is well acquainted with all that ye do.”
22. The Appellants, being beneficiaries, have all rights of audience before the Hon Kadhi, before any step was taken concerning their inheritance. It has not been shown how their participation was inconsistent with the fair hearing of the matter, nor why the Learned Kadhi appears to have been in haste to conclude the matter.
23. Since the matter relates to the estate of the deceased, it was imperative that all persons/heirs who have an interest in the estate and are likely to be affected by any orders issued be heard.
24. Moreover, it appears to me that there was a miscarriage of justice in the succession cause, as the other beneficiaries were neither parties to the application nor did they consent to it.
25. I will now turn to the next issue, to wit, who has the right to collect rent. In Fataawa al -Lajnah ad Daaimah, 16/459, it is stated that:
"If there is no Mutual consent among heirs, then Immovable property should be divided among heirs according to the shares of inheritance prescribed in Islam, with the help of experts in evaluation of estates.”
26. I have scrupulously perused the record and have not come across either a drafted or a signed family consent appointing or proposing to appoint the Interested Party to collect the rents. It would appear to me that the decision to engage or to continue engaging the Interested Party was that of a small group of the beneficiaries. Even if the Interested Party previously collected rent prior to the demise of the decedent, it would have been necessary to obtain the unanimity of the beneficiaries for her to continue to do so. That does not appear to have been done.
27. In my opinion, the learned Kadhi ought to have set aside his ruling or orders and accommodated all beneficiaries by hearing their views. By failing to do so, the learned Kadhi erred. This Court is therefore justified in disturbing his finding by setting it aside and allowing the appeal as prayed.
28. The orders that therefore commend themselves to me are the following:
1. The ruling delivered by the Court below on 3rd September 2024 is hereby set aside; and
2. The Notice of Motion dated 4th June 2024 shall be reheard by an Hon Kadhi, other than the Hon Abdiaziz Maalim Mohamed.
29. Given the nature of this matter and noting that an award of costs won't promote reconciliation, the parties shall bear their own costs on appeal.
Dated and signed in Mombasa this 17th day of March 2026. Delivered virtually through Microsoft TEAMS.
2. Being aggrieved by the said decision, the Appellants appealed to this Court. The Appellants filed a Memorandum of Appeal dated 24th September 2024. The Appeal raises 7 grounds of Appeal, which I shall set out below:
1. That the learned Kadhi erred in law and fact by finding that the Appellants can only access and/or request the account of the deceased after the death but not prior to his death for assessment;
2. That the learned Kadhi erred in law and fact by failing to set aside the orders issued on 31" January 2024 by erroneously finding that the Appellants did not give any proper grounds for the setting aside of the orders;
3. That the learned Kadhi erred in law and fact by disregarding the constitution on the right to a fair hearing and by going ahead to dismiss the Appellants' application by not giving a consideration that the matter in question has been done ex-parte and orders against the wishes of the Appellants obtained ex-parte and that it is only fair to set aside the said orders and give the Appellants a fair hearing as they have equal rights with those of the 1st and 2nd Respondents;
4. That the learned Kadhi erred in law and fact by allowing distribution of the rents collected before administration of the deceased estate is done, despite the respondents not giving out any special reasons or circumstances necessitating distribution of the rental proceeds;
5. That the learned Kadhi erred in law and fact by allowing the firm of Balala &Abed Advocates to collect and distribute rental proceeds unilaterally without considering that the Appellants, as beneficiaries, were not consulted on the same and neither did they give consent to the firm of Balala & Abed Advocates to collect and distribute proceeds of the deceased estate;
6. That the learned Kadhi erred in law and fact by failing to appreciate the Appellants' submissions and to consider the relevant circumstances of the case, thereby leading him to make the wrong findings; and
7. That the learned Kadhi erred in law and fact by finding that the Appellants should bear the cost of the application, whereas both applications were dismissed; hence, it is in the interest of justice that each party bears their own cost.
3. The Appellants therefore sought to have the appeal allowed, the proceedings and the subsequent decision delivered on 3rd September 2024 set aside, and costs awarded to them.
4. The instant appeal, arising as it does from the decision of the Hon Kadhi, was considered by this Judge, sitting with two Kadhis as assessors, pursuant to section 65(1)(c) of the Civil Procedure Act. The appeal was heard on 16th October 2025. The parties also filed written submissions which this Court has considered.
5. The submissions of the Appellants are dated 28th August 2025. The Appellants identified the issues for determination as being whether there had been a fair hearing before the Kadhi and if there was intermeddling.
6. In respect of the first issue, it was urged that since the estate of the deceased has many beneficiaries, the Court ought to have granted the Appellants an opportunity to present their case. The Appellants’ counsel denied that there was proper service of the court process. Counsel referred to the case of Waweru v Maina [2025] KECA 50 (KLR) where the Court of Appeal stated as follows:
“When confronted with an application to set aside a default or ex parte judgment, therefore, the first task of a trial court is to determine if the default judgment is an irregular or regular one. If it is the former, the trial court must set aside the default judgment as a matter of right. If it is the latter, the trial court has unfettered discretion to determine if there is good cause and may set the default judgment aside if it so finds.”
7. With respect to the second issue, the Appellants’ counsel submitted that there had been intermeddling with the deceased’s estate. Counsel therefore prayed that the Appeal be allowed.
8. Submissions from the Respondents were filed by their counsel on 12th September 2025. Counsel provided a brief background to the matter. They identified a single issue for determination, namely whether the Court below had jurisdiction to give interim orders preserving the estate of the deceased.
9. It was urged that the Interested Party had been collecting the rents even before the deceased's death and that it would be absurd to introduce new parties at a late stage. Further, prior to the issuance of the orders, the consent of the Interested Party was sought and obtained. Counsel submitted that none of the beneficiaries had been prejudiced by the fact that the Interested Party was collecting rent.
10. Counsel submitted that the Hon Kadhi was empowered under Rule 112(3) of the Kadhis Court Rules to issue the orders that he did.
11. The Respondents’ counsel therefore urged this Court to dismiss the appeal, with costs to the Respondents.
12. This is a first appeal. It is an appeal against a decision of the Hon Kadhi in an interlocutory matter. The principles that guide this Court when determining interlocutory appeals are similar to those that the Court of Appeal applies when considering second appeals.
13. In Mbogo & another v Shah [1968] EA 93, the court held that:-
“That this court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”
14. I have carefully considered the Record of Appeal and the parties' submissions, and have taken note of the opinions of the Hon Kadhis who sat with me as assessors. In my view, the issues for determination are: whether there was a fair hearing; and who has the right to appoint an agent to collect rents after the demise of the deceased.
15. According to the court records, the beneficiaries of the estate of the late Mohamed Abdalla Balala are seven: six siblings and the widow. Of the seven beneficiaries, only 2 filed an application seeking orders that the Interested Party continue collecting rents from the estate of the deceased.
16. The legal imperative to hear a person who is likely to be affected by a decision before the decision is made cannot be overstated. The Court of Appeal, in Mbaki & Others v. Macharia & Another [2005] 2 EA 206, at page 210, stated as follows:
"The right to be heard is a valued right. It would offend all notions of justice if the rights of a party were to be prejudiced or affected without the party being afforded an opportunity to be heard."
17. The Holy Quran 4:58 sets out the basis of the judicial system as the principle of justice and says:
"Whenever you rule among the people, judge with justice."
18. It is self-evident from the above verse that it is in the interest of justice for each party to be given an opportunity to present his/her case, and for a determination to be made according to the evidence, facts and the applicable law.
19. The Holy Quran 16:90 says as follows:
"God commands justice, the doing of good, and liberality to kith and kin, and He forbids shameful deeds, and injustice and rebellion: He instructs you that ye may receive admonition."
20. The Prophet Mohamed (S.A.W) was just, and he also ordered his followers to be just
21. The Holy Quran 5:8 says as follows:
"O ye who believe! Stand out firmly for God, as witnesses to fair dealing, and let not the hatred of others make you swerve to wrong and depart from justice. Be just (and įudge justly): that is next to piety: and fear God. For God is well acquainted with all that ye do.”
22. The Appellants, being beneficiaries, have all rights of audience before the Hon Kadhi, before any step was taken concerning their inheritance. It has not been shown how their participation was inconsistent with the fair hearing of the matter, nor why the Learned Kadhi appears to have been in haste to conclude the matter.
23. Since the matter relates to the estate of the deceased, it was imperative that all persons/heirs who have an interest in the estate and are likely to be affected by any orders issued be heard.
24. Moreover, it appears to me that there was a miscarriage of justice in the succession cause, as the other beneficiaries were neither parties to the application nor did they consent to it.
25. I will now turn to the next issue, to wit, who has the right to collect rent. In Fataawa al -Lajnah ad Daaimah, 16/459, it is stated that:
"If there is no Mutual consent among heirs, then Immovable property should be divided among heirs according to the shares of inheritance prescribed in Islam, with the help of experts in evaluation of estates.”
26. I have scrupulously perused the record and have not come across either a drafted or a signed family consent appointing or proposing to appoint the Interested Party to collect the rents. It would appear to me that the decision to engage or to continue engaging the Interested Party was that of a small group of the beneficiaries. Even if the Interested Party previously collected rent prior to the demise of the decedent, it would have been necessary to obtain the unanimity of the beneficiaries for her to continue to do so. That does not appear to have been done.
27. In my opinion, the learned Kadhi ought to have set aside his ruling or orders and accommodated all beneficiaries by hearing their views. By failing to do so, the learned Kadhi erred. This Court is therefore justified in disturbing his finding by setting it aside and allowing the appeal as prayed.
28. The orders that therefore commend themselves to me are the following:
1. The ruling delivered by the Court below on 3rd September 2024 is hereby set aside; and
2. The Notice of Motion dated 4th June 2024 shall be reheard by an Hon Kadhi, other than the Hon Abdiaziz Maalim Mohamed.
29. Given the nature of this matter and noting that an award of costs won't promote reconciliation, the parties shall bear their own costs on appeal.
Dated and signed in Mombasa this 17th day of March 2026. Delivered virtually through Microsoft TEAMS.