Introduction
1. This Appeal is in respect of the judgment and decree of the Hon. Juma Ali Abdalla, Principal Kadhi, dated 15.12.2021.
2. Vide the Memorandum of Appeal dated 10th January 2022, the Appellant raised the following grounds of appeal:
(a) The learned trial Kadhi erred in law and fact in referring to a house with land when the issue pertained to a house without land;
(b) The learned trial Kadhi erred in law and fact in failing to find that the Respondent had no authority to bring the case as a representative of his siblings without a power of attorney;
(c) The learned trial Kadhi erred in law and fact in referring to a counterclaim that was dismissed on a preliminary objection;
(d) The learned trial Kadhi erred in law and fact in making reference to the Appellant calling one witness when he had called 4 witnesses.
(e) The learned trial Kadhi erred in law and fact in failing to appreciate that all the beneficiaries of Riziki confirmed having received money from the Appellant;
(f) The learned trial Kadhi erred in law and fact in failing to consider the cost implications of the developments on the suit property done solely by the Appellant despite the existence of cogent evidence.
Pleadings
3. By a Petition dated 26th October 2020, the Appellant sought an order affirming the unopposed distribution plan of the deceased's estate and granting the Appellant full and unconditional ownership of Title No. Mombasa/Block XI/1066 at Spaki, a house without land. The Petition also prayed that the Respondent be evicted from the said premises.
4. The Respondent opposed the Petition vide the Response and counterclaim filed on 27th November 2020, primarily on the ground that, as the heir of the deceased’s daughter, the Respondent was entitled to inherit from the deceased’s estate.
5. The court considered the matter and rendered the impugned ruling directing a fresh valuation, with the proceeds to be shared among the heirs.
6. Aggrieved, the Appellant lodged the memorandum of Appeal, hence this Appeal.
Evidence
7. PW1 was the Appellant. He relied on his witness statement and a bundle of documents, which were admitted into evidence. It was his case that the deceased was his father and that the Respondent was his nephew, the son of his late sister, Riziki Mohamed.
8. He testified on cross-examination that 1/3 of the house was owned by the Respondent’s late mother, Riziki Mohamed.
9. It was his further testimony that both the late Riziki and he collected rent from the house in question.
10. PW2, Riziki Iddi, supported PW1’s case, stating that the Respondent had the option to conduct his valuation but never did.
11. PW3 was Salma Abas Seif, who testified that the Respondent was not present at the meeting regarding the property valuation, even though he was invited.
12. Juma Adam Mohamed testified that the Petitioner was his father. The Appellant asked him to deposit Kes 100,000 belonging to the Respondent, and he did so. According to him, the house was valued at Kes 2,500,000.
13. The Respondent also testified. He relied on his witness statement. According to him, the Appellant was his uncle. He did not agree to appear when summoned to Shareffa Centre. In his view, the house was worth more than Kes 2,500,000. On cross-examination, he testified that he stayed in the house. He had not received a cent.
14. Juma Musa Abdalla, the Respondent's brother, also testified and admitted receiving Kes 128,200.
15. Kibwana Suleiman, the Respondent's brother, also admitted to receiving Kes 128,200.
16. Mohamed Abdulrahman, the Respondent's brother, also admitted to receiving Ksh. 128,200 from the Appellant.
Submissions
17. The Appellant filed submissions dated 10th January 2024. It was submitted that the court misapprehended the evidence that the house was without land and that the counterclaim was nonexistent, as it had been dismissed before the hearing of the Petition. The court also misapprehended the number of witnesses who testified for and on behalf of the Appellant.
18. The Appellant also submitted that the court did not take into account the developments the Appellant made on the premises.
19. The Respondent submitted that the decision was fair and should not be disturbed. It was also submitted that the Appellant was intermeddling with the deceased's property. Reference was made to Section 45 of the Law of Succession Act.
Analysis
20. The issue before me for determination is whether the Appeal is merited.
21. Because this is a first appeal, this court is under a duty to re-evaluate the evidence and draw its own conclusions. It must, however, keep in mind that a subordinate court, unlike the appellate court, had the advantage of observing the witnesses' demeanor and hearing their evidence firsthand.
22. 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. In the case of Mbogo and Another vs. Shah [1968] EA 93, the court stated:
“…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 is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”
23. The duty of the first appellate court was set out in the case of Selle & another Vs Associated Motor Board Company and Others [1968]EA 123, where the court held 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-subordinate and the Court of Appeal is not bound to follow the subordinate 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.”
24. The Court is to bear in mind that it had neither seen nor heard the witnesses. It is the subordinate court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The Court's review of the documents is the same as in the lower court, as parties cannot read into them matters extrinsic to them.
25. This court’s jurisdiction to review the evidence should be exercised with caution. In the case of Peters vs Sunday Post Limited [1958] EA 424, the court held 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…”
26. I note that the court did not have the advantage of seeing and hearing the witnesses, as did the lower court. Nevertheless, it must reconsider the evidence, evaluate it itself, and draw its own conclusions.
27. The grounds upon which the Appellant challenged the judgment of the Kadhi’s Court appear to be on procedural technicalities of failure to apprise the status of the suit premises, which was a house without land, the number of witnesses who testified, and the quantum of developments on the premises. The manner in which such omissions were fundamental as to prejudice the Appellant was not appraised.
28. It is common ground among the parties that the valuation that yielded Kes 2,500,000 as the value of the suit property was not accepted by the Respondent, nor did the Respondent participate in generating it.
29. Kadhi’s court is a creature of Article 170 of the Constitution. Its jurisdiction is provided for under Article 170(5) as follows:
“(5) The jurisdiction of a Kadhis’ 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 the parties profess the Muslim religion and submit to the jurisdiction of the Kadhi’s courts.”
12. Under Article 170(3), Parliament is empowered to establish Kadhis’ Courts, each having the jurisdiction and powers conferred to it by legislation, but subject to clause (5) above. The legislation contemplated is the Kadhi’s Courts Act (Cap 11), whose section 5 states as follows:-
“(5) 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 the parties profess the Muslim religion; but nothing in this section shall limit the jurisdiction of the High Court or of any subordinate court in any proceeding which comes before it.”
30. Therefore, the court had the power to issue the orders it did in its judgment. There was no basis for the Appellant to impose a valuation report on the Respondent without the Respondent’s participation or approval. It was the Appellant’s duty to apply to the Kadhi’s Court to have the matter referred to mediation or reconciliation. Any valuation orders issued outside the court were invalid and ineffective under Article 170(5) of the Constitution, as they usurped the jurisdiction of the Kadhi’s Court.
31. I find no basis upon which to exercise my discretion in favour of the Appellant. The discretion of this court is premised on the law. In animating the discretionary powers of the Court in the case of Ramakant Rai vs. Madan Rai, Cr LJ 2004 SC 36, the Supreme Court of India rendered itself thus on the issue of judicial discretion:
“Judicial discretion is canalized authority, not arbitrary eccentricity. Cardozo, with elegant accuracy, has observed:
“The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not a yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to ‘the primordial necessity of order in the social life.’ Wide enough in all conscience is the field of discretion that remains.
32. What flows from the foregoing is that the appeal has no merit. The same is dismissed
Final Orders
33. The orders that comment themselves to me are the following:
(i) The Appeal lacks merit and is dismissed; and
(ii) This being a succession dispute, each party is to bear its own costs.
Dated and signed in Mombasa, Virtually on this 5th day of December 2024. Judgment delivered virtually through Microsoft TEAMS.
1. This Appeal is in respect of the judgment and decree of the Hon. Juma Ali Abdalla, Principal Kadhi, dated 15.12.2021.
2. Vide the Memorandum of Appeal dated 10th January 2022, the Appellant raised the following grounds of appeal:
(a) The learned trial Kadhi erred in law and fact in referring to a house with land when the issue pertained to a house without land;
(b) The learned trial Kadhi erred in law and fact in failing to find that the Respondent had no authority to bring the case as a representative of his siblings without a power of attorney;
(c) The learned trial Kadhi erred in law and fact in referring to a counterclaim that was dismissed on a preliminary objection;
(d) The learned trial Kadhi erred in law and fact in making reference to the Appellant calling one witness when he had called 4 witnesses.
(e) The learned trial Kadhi erred in law and fact in failing to appreciate that all the beneficiaries of Riziki confirmed having received money from the Appellant;
(f) The learned trial Kadhi erred in law and fact in failing to consider the cost implications of the developments on the suit property done solely by the Appellant despite the existence of cogent evidence.
Pleadings
3. By a Petition dated 26th October 2020, the Appellant sought an order affirming the unopposed distribution plan of the deceased's estate and granting the Appellant full and unconditional ownership of Title No. Mombasa/Block XI/1066 at Spaki, a house without land. The Petition also prayed that the Respondent be evicted from the said premises.
4. The Respondent opposed the Petition vide the Response and counterclaim filed on 27th November 2020, primarily on the ground that, as the heir of the deceased’s daughter, the Respondent was entitled to inherit from the deceased’s estate.
5. The court considered the matter and rendered the impugned ruling directing a fresh valuation, with the proceeds to be shared among the heirs.
6. Aggrieved, the Appellant lodged the memorandum of Appeal, hence this Appeal.
Evidence
7. PW1 was the Appellant. He relied on his witness statement and a bundle of documents, which were admitted into evidence. It was his case that the deceased was his father and that the Respondent was his nephew, the son of his late sister, Riziki Mohamed.
8. He testified on cross-examination that 1/3 of the house was owned by the Respondent’s late mother, Riziki Mohamed.
9. It was his further testimony that both the late Riziki and he collected rent from the house in question.
10. PW2, Riziki Iddi, supported PW1’s case, stating that the Respondent had the option to conduct his valuation but never did.
11. PW3 was Salma Abas Seif, who testified that the Respondent was not present at the meeting regarding the property valuation, even though he was invited.
12. Juma Adam Mohamed testified that the Petitioner was his father. The Appellant asked him to deposit Kes 100,000 belonging to the Respondent, and he did so. According to him, the house was valued at Kes 2,500,000.
13. The Respondent also testified. He relied on his witness statement. According to him, the Appellant was his uncle. He did not agree to appear when summoned to Shareffa Centre. In his view, the house was worth more than Kes 2,500,000. On cross-examination, he testified that he stayed in the house. He had not received a cent.
14. Juma Musa Abdalla, the Respondent's brother, also testified and admitted receiving Kes 128,200.
15. Kibwana Suleiman, the Respondent's brother, also admitted to receiving Kes 128,200.
16. Mohamed Abdulrahman, the Respondent's brother, also admitted to receiving Ksh. 128,200 from the Appellant.
Submissions
17. The Appellant filed submissions dated 10th January 2024. It was submitted that the court misapprehended the evidence that the house was without land and that the counterclaim was nonexistent, as it had been dismissed before the hearing of the Petition. The court also misapprehended the number of witnesses who testified for and on behalf of the Appellant.
18. The Appellant also submitted that the court did not take into account the developments the Appellant made on the premises.
19. The Respondent submitted that the decision was fair and should not be disturbed. It was also submitted that the Appellant was intermeddling with the deceased's property. Reference was made to Section 45 of the Law of Succession Act.
Analysis
20. The issue before me for determination is whether the Appeal is merited.
21. Because this is a first appeal, this court is under a duty to re-evaluate the evidence and draw its own conclusions. It must, however, keep in mind that a subordinate court, unlike the appellate court, had the advantage of observing the witnesses' demeanor and hearing their evidence firsthand.
22. 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. In the case of Mbogo and Another vs. Shah [1968] EA 93, the court stated:
“…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 is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”
23. The duty of the first appellate court was set out in the case of Selle & another Vs Associated Motor Board Company and Others [1968]EA 123, where the court held 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-subordinate and the Court of Appeal is not bound to follow the subordinate 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.”
24. The Court is to bear in mind that it had neither seen nor heard the witnesses. It is the subordinate court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The Court's review of the documents is the same as in the lower court, as parties cannot read into them matters extrinsic to them.
25. This court’s jurisdiction to review the evidence should be exercised with caution. In the case of Peters vs Sunday Post Limited [1958] EA 424, the court held 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…”
26. I note that the court did not have the advantage of seeing and hearing the witnesses, as did the lower court. Nevertheless, it must reconsider the evidence, evaluate it itself, and draw its own conclusions.
27. The grounds upon which the Appellant challenged the judgment of the Kadhi’s Court appear to be on procedural technicalities of failure to apprise the status of the suit premises, which was a house without land, the number of witnesses who testified, and the quantum of developments on the premises. The manner in which such omissions were fundamental as to prejudice the Appellant was not appraised.
28. It is common ground among the parties that the valuation that yielded Kes 2,500,000 as the value of the suit property was not accepted by the Respondent, nor did the Respondent participate in generating it.
29. Kadhi’s court is a creature of Article 170 of the Constitution. Its jurisdiction is provided for under Article 170(5) as follows:
“(5) The jurisdiction of a Kadhis’ 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 the parties profess the Muslim religion and submit to the jurisdiction of the Kadhi’s courts.”
12. Under Article 170(3), Parliament is empowered to establish Kadhis’ Courts, each having the jurisdiction and powers conferred to it by legislation, but subject to clause (5) above. The legislation contemplated is the Kadhi’s Courts Act (Cap 11), whose section 5 states as follows:-
“(5) 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 the parties profess the Muslim religion; but nothing in this section shall limit the jurisdiction of the High Court or of any subordinate court in any proceeding which comes before it.”
30. Therefore, the court had the power to issue the orders it did in its judgment. There was no basis for the Appellant to impose a valuation report on the Respondent without the Respondent’s participation or approval. It was the Appellant’s duty to apply to the Kadhi’s Court to have the matter referred to mediation or reconciliation. Any valuation orders issued outside the court were invalid and ineffective under Article 170(5) of the Constitution, as they usurped the jurisdiction of the Kadhi’s Court.
31. I find no basis upon which to exercise my discretion in favour of the Appellant. The discretion of this court is premised on the law. In animating the discretionary powers of the Court in the case of Ramakant Rai vs. Madan Rai, Cr LJ 2004 SC 36, the Supreme Court of India rendered itself thus on the issue of judicial discretion:
“Judicial discretion is canalized authority, not arbitrary eccentricity. Cardozo, with elegant accuracy, has observed:
“The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not a yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to ‘the primordial necessity of order in the social life.’ Wide enough in all conscience is the field of discretion that remains.
32. What flows from the foregoing is that the appeal has no merit. The same is dismissed
Final Orders
33. The orders that comment themselves to me are the following:
(i) The Appeal lacks merit and is dismissed; and
(ii) This being a succession dispute, each party is to bear its own costs.
Dated and signed in Mombasa, Virtually on this 5th day of December 2024. Judgment delivered virtually through Microsoft TEAMS.