1. The appellant being aggrieved by the Judgment dated 13th October 2020 delivered by the Hon Habib Salim Vumbi, Principal Kadhi on 13th October 2020 filed this appeal seeking orders to set aside the judgment in its entirety.
2. The grounds of appeal as stated in the Memorandum of Appeal dated 26th October 2020 are as follows:-
(1) That, the Honorable Kadhi erred in law and in fact by failing to hold that the immovable properties listed by the petitioner formed part of the Estate of the late Mbarak Abud Abad, in which the respondent’s late father had a share in;
(2) That, the Honorable Kadhi erred in law and in fact in finding that the immovable properties listed in the petition formed part of the respondent’s father's estate;
(3) That, the Honorable Kadhi erred in law and fact in placing too much reliance on the letter 28th February 2020 without considering the evidence tendered by the parties at the hearing.
(4) That, the Honorable Kadhi erred in law and in fact in finding that the immovable properties did not form part of the appellant’s father estate despite admission by the respondent that the appellants is better placed to state how the said properties were acquired;
(5) That despite the aforementioned express averment on oath, the court erred in law and in fact in failing to give weight to the appellant’s evidence that the said immovable properties were acquired not by the respondent’s late father, but by the respondent’s late grandfather;
(6) That the Honorable Kadhi erred in law and in fact in failing to give weight to the evidence on the dates of the acquisition of the property's viz a vis the age of the respondent’s father at the said time vis a vis the evidence that the respondent’s late father had already moved to Saudi Arabia in 1970's when the properties' were acquired;
(7) That the Honorable Kadhi erred in law in equating the letters afore mentioned to a certificate of Lease and or Certificate of Lease under Section 30(3) of the Land Act;
(8) That the Honorable Kadhi erred in Law and in Fact in finding the court did not have requisite powers to determine the issue of whether or not the properties belonged to the respondent's grandfather's estate;
(9) That the Honorable Kadhi erred in law and in fact in holding that there was no dispute as to the ownership of the estate despite overwhelming evidence that the properties allegedly comprising of the estate of the respondent’s late father was in dispute;
(10) That the Honorable Kadhi erred in law and in fact in ordering the appellant to file a bank statement of the Account No.5261435001 held at DTB Bank, Nkrumah Road without any evidence that the appellant had Knowledge of the said account;
(11) That the Honorable Kadhi erred in law and in fact in ordering the Appellant to hand over the relevant tittles and ownership documents of house erected on plot No.70 to the petitioner without any evidence whatsoever that the Appellant was in possession of the said tittles and ownership documents;
(12) That the Honorable Kadhi erred in law and in fact in holding that house erected on plot No. 70 had a certificate of Tittle; and
(13) That the Honorable Kadhi erred in law and in fact by failing to give due consideration to the merits of the Appellant's evidence in the suit with specific regards to:-
a. Failing to correctly and carefully analyze the oral evidence of the respondent and the respondent’s witness; and
b. Failing to correctly apply the respondent's evidence by arriving at the fact that the deceased estate comprises of a beneficial share of the one million Kenya shillings yet the rent from which the monies was collected from are the properties that the Honorable Kadhi declared as part of the estate of the deceased.
3. The appeal is against the entire decision of the Court below.
4. This being a first appeal, this court must re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that the trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first-hand.
5. The duty of the first appellate Court was settled in the case of Selle & another vs Associated Motor Boat Company and Others [1968]EA 123. In the said case the learned Judges of Appeal stated as follows:-
“…this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”
6. Further, in the case of Peters vs Sunday Post Limited [1958] EA 424, the court rendered itself as follows:-
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion.”
7. I have closely perused the pleadings and the appellant’s and the respondent’s evidence. From what I have established, there is a dispute as to the ownership of the properties listed in the petition before the court below. The appellant is the uncle of the respondent/petitioner. The appellant claims that the properties listed belonged to his late father (grandfather of the respondent), while the respondent claims the properties belonged to his father (deceased).
8. That being the case, a question of jurisdiction arises. Was the Kadhi’s Court the proper court to hear the matter? I must state that jurisdiction is foundational; without it, as succinctly held by Nyarangi, JA, in Owners of Motor Vessel Lilian “S” v Caltex Oil (Kenya) Ltd [1989] eKLR, the court cannot take one more step and must down its tools.
9. It has been stated and I agree that jurisdiction goes to the root of the court, and it is not a mere procedural technicality that can be cured by Article 159(1) of the Constitution of Kenya. In the supreme court case of Samuel Macharia and another v Kenya Commercial Bank Limited & others (2012) eKLR, it was held that: -
"A court's jurisdiction flows from either the constitution or legislation or both. Thus, a court of law can only exercise jurisdiction conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law…”
10. The jurisdiction of the Kadhis Court is stated in Article 170(5) of the Constitution of Kenya (2010) as being as follows:-
"The jurisdiction of a Kadhi's court shall be limited to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all parties profess the Muslim religion and submit to the jurisdiction of the Kadhi's Courts."
11. The issue in this appeal is chiefly whether the late Islam Mbarak Abud or the late Mbarak Abud Abad acquired the properties.
12. Although the parties did not actively litigate the jurisdiction question, it is my opinion that the said issue can be raised during the appeal and even by the Court of its own motion. My opinion is guided by the decision of the Court of Appeal in the case of Barclays Bank of Kenya Limited v Patriotic Guards Limited [2015]eKLR, wherein the learned Karanja, Mwilu and Kiage, JJAs held that as follows:
"It is also trite law that a point of law can be raised at any stage, even on appeal, even though not raised before the court of first instance. The court can also, on its own motion, raise a point of law at any point and make a determination based on the same, even where such point has not been canvassed by the parties. The learned Judge did not therefore do anything outrageous by raising the issue of noncompliance of Regulation 79 of Table A of the Companies Act and acting on it.”
13. I note that Section 5 of the Kadhis' Court Act states as follows:-
"A Kadhi's court shall have and exercise the following jurisdiction, namely the determination of questions of Muslim law relating to personal status, Marriage, divorce or inheritance, in proceedings in which all parties profess the Muslim religion, but nothing in this section shall limit the jurisdiction of the high court or any subordinate court in any proceedings which come before it."
14. The Constitution of Kenya (2010) Article 162(2) (b) read together with the Environment and Land Court Act. The latter states that:-
“(2) Parliament shall establish a court with the status of the High Court to hear and determine disputes relating to:-
…
(b) The environment and the use and occupation of and title to land.”
15. The Environment and Land Court Act, at sec 13(2) (a) thereof states that:-
“In exercise of its jurisdiction under Article 162(2) (b) of the Constitution, the court shall have power to hear and determine disputes:-
relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources…”
16. I note from the record of appeal that the ownership of the plots No. 70, 39 and 123 is disputed. The petitioner/respondent had furnished the court with receipts, which the appellant disputed. Concerning Kes.1,000,000.00, the appellant agreed that it formed part of his father's estate (grandfather of the Respondent), whereby the Respondent have a share of his late father (Yislam Mbarak), who is now deceased, while the respondent claims that the same Kes.1,000,000.00 is from the proceeds of rents collected.
17. In re Estate of Julius Ndubi Javan (Deceased) [2018] eKLR, it was held that:-
"The primary duty of the Probate Court is to distribute the estate of the deceased to the rightful beneficiaries. As of necessity, the estate property must be identified. Thus, where issues on the ownership of the property of the estate are raised in a succession cause, they must be resolved before such property is distributed. And that is the very reason why rule 41(3) of the Probate and Administration Rules was enacted so that claims which are prima facie valid should be determined before confirmation.”
18. Even though I appreciate that what fell due for determination before the Kadhi was an issue of succession, a dispute regarding ownership in respect of a property of a deceased person negates the concept of free property of a deceased person.
19. In the instant case, and as already noted, the court was sitting as a probate court and, notwithstanding, was presented with a case wherein the appellant urged that Plots Nos. 70, 39, and 123 belonged to his father, while the respondent claimed they belonged to his father.
20. The trial court could not determine issues of ownership. See in re Estate of Solomon Mwangi Waweru (deceased) [2018]eKLR, where A.K. Ndung'u, J, held that a succession court has no jurisdiction to hear and determine issues related to trust in land as that is the jurisdiction of the Environment and Land Court.
21. While noting that the respondent had claimed that the plots belonged to the deceased father, the trial court should have directed the parties to the court with jurisdiction so that the ownership dispute could be determined before distribution.
22. I am persuaded that the trial court did not possess the requisite jurisdiction to hear and determine the ownership dispute. As was held in R M M v M a.k.a. J K M [2019] KEHC 7104 (KLR), where it was stated that:-
“ 48. Having found that the Kadhi had no jurisdiction to handle the case in the first instance, I must also find that this court has no jurisdiction to determine issues that arose from illegal proceedings. As stated in the MV Lillian S (supra), the proceedings and judgment before the Kadhi’s Court amounted to nothing."
23. It is evident from the foregoing that the decision of the Court below cannot stand. It was made by a court without jurisdiction; it therefore amounts to nothing. The decision of the Principal Kadhi delivered on the 13th October 2020 is hereby set aside in its entirety.
24. I do not think that an award of costs will be helpful. Parties will therefore bear their own costs.
25. It is so ordered.
Dated and signed at Mombasa this 14th day of October 2024. Delivered virtually through Microsoft TEAMS.
2. The grounds of appeal as stated in the Memorandum of Appeal dated 26th October 2020 are as follows:-
(1) That, the Honorable Kadhi erred in law and in fact by failing to hold that the immovable properties listed by the petitioner formed part of the Estate of the late Mbarak Abud Abad, in which the respondent’s late father had a share in;
(2) That, the Honorable Kadhi erred in law and in fact in finding that the immovable properties listed in the petition formed part of the respondent’s father's estate;
(3) That, the Honorable Kadhi erred in law and fact in placing too much reliance on the letter 28th February 2020 without considering the evidence tendered by the parties at the hearing.
(4) That, the Honorable Kadhi erred in law and in fact in finding that the immovable properties did not form part of the appellant’s father estate despite admission by the respondent that the appellants is better placed to state how the said properties were acquired;
(5) That despite the aforementioned express averment on oath, the court erred in law and in fact in failing to give weight to the appellant’s evidence that the said immovable properties were acquired not by the respondent’s late father, but by the respondent’s late grandfather;
(6) That the Honorable Kadhi erred in law and in fact in failing to give weight to the evidence on the dates of the acquisition of the property's viz a vis the age of the respondent’s father at the said time vis a vis the evidence that the respondent’s late father had already moved to Saudi Arabia in 1970's when the properties' were acquired;
(7) That the Honorable Kadhi erred in law in equating the letters afore mentioned to a certificate of Lease and or Certificate of Lease under Section 30(3) of the Land Act;
(8) That the Honorable Kadhi erred in Law and in Fact in finding the court did not have requisite powers to determine the issue of whether or not the properties belonged to the respondent's grandfather's estate;
(9) That the Honorable Kadhi erred in law and in fact in holding that there was no dispute as to the ownership of the estate despite overwhelming evidence that the properties allegedly comprising of the estate of the respondent’s late father was in dispute;
(10) That the Honorable Kadhi erred in law and in fact in ordering the appellant to file a bank statement of the Account No.5261435001 held at DTB Bank, Nkrumah Road without any evidence that the appellant had Knowledge of the said account;
(11) That the Honorable Kadhi erred in law and in fact in ordering the Appellant to hand over the relevant tittles and ownership documents of house erected on plot No.70 to the petitioner without any evidence whatsoever that the Appellant was in possession of the said tittles and ownership documents;
(12) That the Honorable Kadhi erred in law and in fact in holding that house erected on plot No. 70 had a certificate of Tittle; and
(13) That the Honorable Kadhi erred in law and in fact by failing to give due consideration to the merits of the Appellant's evidence in the suit with specific regards to:-
a. Failing to correctly and carefully analyze the oral evidence of the respondent and the respondent’s witness; and
b. Failing to correctly apply the respondent's evidence by arriving at the fact that the deceased estate comprises of a beneficial share of the one million Kenya shillings yet the rent from which the monies was collected from are the properties that the Honorable Kadhi declared as part of the estate of the deceased.
3. The appeal is against the entire decision of the Court below.
4. This being a first appeal, this court must re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that the trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first-hand.
5. The duty of the first appellate Court was settled in the case of Selle & another vs Associated Motor Boat Company and Others [1968]EA 123. In the said case the learned Judges of Appeal stated as follows:-
“…this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”
6. Further, in the case of Peters vs Sunday Post Limited [1958] EA 424, the court rendered itself as follows:-
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion.”
7. I have closely perused the pleadings and the appellant’s and the respondent’s evidence. From what I have established, there is a dispute as to the ownership of the properties listed in the petition before the court below. The appellant is the uncle of the respondent/petitioner. The appellant claims that the properties listed belonged to his late father (grandfather of the respondent), while the respondent claims the properties belonged to his father (deceased).
8. That being the case, a question of jurisdiction arises. Was the Kadhi’s Court the proper court to hear the matter? I must state that jurisdiction is foundational; without it, as succinctly held by Nyarangi, JA, in Owners of Motor Vessel Lilian “S” v Caltex Oil (Kenya) Ltd [1989] eKLR, the court cannot take one more step and must down its tools.
9. It has been stated and I agree that jurisdiction goes to the root of the court, and it is not a mere procedural technicality that can be cured by Article 159(1) of the Constitution of Kenya. In the supreme court case of Samuel Macharia and another v Kenya Commercial Bank Limited & others (2012) eKLR, it was held that: -
"A court's jurisdiction flows from either the constitution or legislation or both. Thus, a court of law can only exercise jurisdiction conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law…”
10. The jurisdiction of the Kadhis Court is stated in Article 170(5) of the Constitution of Kenya (2010) as being as follows:-
"The jurisdiction of a Kadhi's court shall be limited to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all parties profess the Muslim religion and submit to the jurisdiction of the Kadhi's Courts."
11. The issue in this appeal is chiefly whether the late Islam Mbarak Abud or the late Mbarak Abud Abad acquired the properties.
12. Although the parties did not actively litigate the jurisdiction question, it is my opinion that the said issue can be raised during the appeal and even by the Court of its own motion. My opinion is guided by the decision of the Court of Appeal in the case of Barclays Bank of Kenya Limited v Patriotic Guards Limited [2015]eKLR, wherein the learned Karanja, Mwilu and Kiage, JJAs held that as follows:
"It is also trite law that a point of law can be raised at any stage, even on appeal, even though not raised before the court of first instance. The court can also, on its own motion, raise a point of law at any point and make a determination based on the same, even where such point has not been canvassed by the parties. The learned Judge did not therefore do anything outrageous by raising the issue of noncompliance of Regulation 79 of Table A of the Companies Act and acting on it.”
13. I note that Section 5 of the Kadhis' Court Act states as follows:-
"A Kadhi's court shall have and exercise the following jurisdiction, namely the determination of questions of Muslim law relating to personal status, Marriage, divorce or inheritance, in proceedings in which all parties profess the Muslim religion, but nothing in this section shall limit the jurisdiction of the high court or any subordinate court in any proceedings which come before it."
14. The Constitution of Kenya (2010) Article 162(2) (b) read together with the Environment and Land Court Act. The latter states that:-
“(2) Parliament shall establish a court with the status of the High Court to hear and determine disputes relating to:-
…
(b) The environment and the use and occupation of and title to land.”
15. The Environment and Land Court Act, at sec 13(2) (a) thereof states that:-
“In exercise of its jurisdiction under Article 162(2) (b) of the Constitution, the court shall have power to hear and determine disputes:-
relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources…”
16. I note from the record of appeal that the ownership of the plots No. 70, 39 and 123 is disputed. The petitioner/respondent had furnished the court with receipts, which the appellant disputed. Concerning Kes.1,000,000.00, the appellant agreed that it formed part of his father's estate (grandfather of the Respondent), whereby the Respondent have a share of his late father (Yislam Mbarak), who is now deceased, while the respondent claims that the same Kes.1,000,000.00 is from the proceeds of rents collected.
17. In re Estate of Julius Ndubi Javan (Deceased) [2018] eKLR, it was held that:-
"The primary duty of the Probate Court is to distribute the estate of the deceased to the rightful beneficiaries. As of necessity, the estate property must be identified. Thus, where issues on the ownership of the property of the estate are raised in a succession cause, they must be resolved before such property is distributed. And that is the very reason why rule 41(3) of the Probate and Administration Rules was enacted so that claims which are prima facie valid should be determined before confirmation.”
18. Even though I appreciate that what fell due for determination before the Kadhi was an issue of succession, a dispute regarding ownership in respect of a property of a deceased person negates the concept of free property of a deceased person.
19. In the instant case, and as already noted, the court was sitting as a probate court and, notwithstanding, was presented with a case wherein the appellant urged that Plots Nos. 70, 39, and 123 belonged to his father, while the respondent claimed they belonged to his father.
20. The trial court could not determine issues of ownership. See in re Estate of Solomon Mwangi Waweru (deceased) [2018]eKLR, where A.K. Ndung'u, J, held that a succession court has no jurisdiction to hear and determine issues related to trust in land as that is the jurisdiction of the Environment and Land Court.
21. While noting that the respondent had claimed that the plots belonged to the deceased father, the trial court should have directed the parties to the court with jurisdiction so that the ownership dispute could be determined before distribution.
22. I am persuaded that the trial court did not possess the requisite jurisdiction to hear and determine the ownership dispute. As was held in R M M v M a.k.a. J K M [2019] KEHC 7104 (KLR), where it was stated that:-
“ 48. Having found that the Kadhi had no jurisdiction to handle the case in the first instance, I must also find that this court has no jurisdiction to determine issues that arose from illegal proceedings. As stated in the MV Lillian S (supra), the proceedings and judgment before the Kadhi’s Court amounted to nothing."
23. It is evident from the foregoing that the decision of the Court below cannot stand. It was made by a court without jurisdiction; it therefore amounts to nothing. The decision of the Principal Kadhi delivered on the 13th October 2020 is hereby set aside in its entirety.
24. I do not think that an award of costs will be helpful. Parties will therefore bear their own costs.
25. It is so ordered.
Dated and signed at Mombasa this 14th day of October 2024. Delivered virtually through Microsoft TEAMS.