JUDGEMENT
(Being an appeal against the Judgment of Kadhi’s Court at Nyeri (Hon. Sheikh Mohamed Abdalla) delivered on the 8th May 2013 in Succession Cause No. 6 of 2012 )
INTRODUCTION
1.The appellant has raised four grounds of Appeal vide his Memorandum of Appeal 4th May 2013 filed in court on the 5th June 2013.
The grounds are that:-
a)The learned Honourable Kadhi erred in law and fact by failing to appreciate that the estate subject of the Succession Cause had been distributed in NANYUKI SRM Court Succession 25 of 1998 and a certificate of confirmation of grant issued.
b)Kadhi erred in law by failing to appreciate that he had no jurisdiction to interfere with the manner of distribution as contained in the certificate of confirmation of grant dated the 1st November 2000 as doing so amounted to sitting on appeal of the decision of the subordinate Court.
c)That the Honourable Kadhi erred in law and fact by failing to consider and appreciate that at the time of his decision there was a certificate of confirmation of graft to the estate of late Abdillahi Daste Gabriels which has not been revoked.
d)That the Honourable Court erred in finding that the deceased ABDILLAHI DASTA GABRIELS had three wives namely Mwajuma, Famila and Amina against the weight of evidence.
2.It is the Appellants position that the Respondent was awarded a share of the deceased property wrongly for the Respondent only came to be known to her in May 2012.
3.As a first Appellate Court, I am duty bound to re-evaluate the evidence tendered before the lower court, analyse the same and draw my own conclusions on the same.
4.In undertaking that duty I am acutely aware that I did not have the opportunity to hear the witnesses or even observe their demeanour. The Honourable Kadhi in this matter would have been the best placed adjudicator to observe their demeanor. This court is ably guided by the holding of the court in Selle & Another Vs Others [1968] EA 123.
ANALYSIS AND DETERMINATION
5.The Appellant as well as the Respondent has put in submissions as per the directions of the court.
6.The Appellant’s case is that the only ground that is live for determination is that the Honourable Kadhi erred in law in finding that the deceased ABDILLAHI DASTA GABRIELS’S had three wives namely Mwajuma, Famila and Amina.
7.The Appellant mainatains that it was the Respondents duty in law to prove that Mwajuma from whom the Respondents draw their lineage was the wife of the deceased.
8.According to the Appellate that evidential burden was not discharged by the Respondents.
9.This court is in agreement with the Appellant that following the dismissal of their application to adduce additional evidence in order to introduce the proceedings that were taken before SRM’s court in Nanyuki Succession Cause No. 25 of 1998, the only issue left was whether the Respondents were entitled to a share of the deceased’s estate under ISLAMIC law.
10.The Respondent in the lower court called Fatuma Abdalla who is the mother of the Respondent and three (3) other witnesses in support of her cause.
11.The witnesses testified that Mwajuma was a wife to the deceased and that she had one child by the name ABDALLA who was the Respondent’s father.
12.The Appellant disputed this by calling witnesses who maintained that the deceased had two wives namely Amina and Jamina. None of the Appellants witnesses talked about the relationship between Mwajuma and the deceased. The Appellants witness did not talk about Abdalla whom the Respondent claims be his father.
13.The Kadhi after hearing the witness arrived at a finding that the said Mwajuma was the deceased’s wife and that she was known to the elders.
14.The Appellant urges this court to find that there was no basis fore such a finding by the Kadhi.
15.In my view the Respondent had called sufficient oral evidence to support his claim.
16.Section 62 of the Evidence Act provides:-
62 “ All facts, except the contents documents may be proved by oral evidence”.
17.The evidence presented by the Respondent regarding the relationship between Mwajuma and the deceased was evidence of those of who lived with the deceased in NANYUKI. The evidence was direct and unchallenged.
18.The Appellants witnessed did not tender any evidential material that could displace the evidence presented by the Respondent and her witness.
19.I am inclined to find that the evidence tendered by the Respondent was the best evidence in the circumstances.
20.It is clear to me that the Kadhi was presented with evidence by the Appellant that only mentioned two wives of the deceased other than Mwajuma.
21.The Kadhi had the opportunity to see and hear the witnesses unlike this court.
22.Upon independent review of the evidence on record I do not find the Kadhi to have erred in any material way or misdirected himself on any principleof law to warrant this court’s intervention. See Mbogo Vs shah [1968] EA 93
23.It is important to not here that the question that the Appellant raises in this Appeal goes to the root of proof of marriage.
24.Notably, the best evidence as to whether there ever existed a marriage between Majuma and the deceased would have been tendered buy the two who are now deceased. The court only rely on the evidence of the elders to determine the issue of marriage.
25..Under Islamic Law a marriage (otherwise known as Nikah) is a contract exclusively between a man and a woman. The groom and the bride consent to the marriage of their own free will. The parties whose marriage the Appellant is challenging were all not available to testify.The Kadhi could only rely on what the parties in this Appeal and their witnesses presented.
26.In the circumstances of this Appeal, I agree with the Respondent’s submission that the evidence of PW 1, PW 2 and PW 3 a pages 15,16,17, 18 and 19 of the supplementary record of Appeal show that Mwajuma was a wife of the deceased and was the mother to Abdalla. Abdalla was the father to the Respondent this the respondent as a grandson of the deceased was entitled to inherit.
27.In any event the record clearly indicates that the other wives of the deceased did not have children with the deceased.
28.The Appellant being an adopted daughter cannot therefore disentitle the Respondent who flows from the blood line of the deceased.
29.The Kadhi was emphatic in his citation of the Holy Quran on adopted children and their position under Sharia Law. He stated:
“ call them (adopted sons) by the names of their fathers. that is more just with Alla. But if you know not their fathers’ names call them your brothers in faith” Surah 33:4.
30.. The Appellant in the statement in defence admitted the Kadhi had jurisdiction in this matter. It is in no doubt therefore that the parties being persons who profess the Islamic faith they are bound by it.
31. The court has therefore not been presented with evidence that would persuade me to review the Kadhi’s decision on the finding that Mwajuma was not the deceased’s wife and by operation of the law the Respondent had a right to inherit since he was a grandson of the deceased.
CONCLUSION
32.In conclusion this court is minded to hold and find that the Kadhi did not err in his finding that Mwajuma was the deceased wife and had a son by the name Abdalla. In Cleopa Amutala Namayi Vs. Judith Were Succession Cause No. 457 of 2005 [2015] eKLR MRIMA, J observed thus: -
“grand children should inherit from their own parents and is when the grandchildren’s own parents are dead that they inherit from their grant parents ” The appellant was therefore entitled to inherit from his grand parents.
33.The upshot of the above is that the appeal is hereby dismissed with costs.