1. Before me are two applications. The first application is dated 15th June 2025. The appellants filed it. The appellants seek the following orders:-.
1. Spent;
2. Spent;
3. That this Honourable court be pleased to exercise its supervisory powers over the Mombasa Kadhis' Court in Succession Cause No. E076 of 2021; in the Estate of the late Akbar Mohammed Haji Ali, and do give orders and direct the Kadhis Court to deliver a ruling on the applicants' application dated 29th November 2024 and 14th February 2025, respectively;
4. That upon granting prayer 3, this Honourable Court be pleased to issue an order of status quo to be maintained pending the ruling of the applicant's application dated 29th November 2024 and 14th February 2025, respectively, in Mombasa Kadhi's court in Succession Cause No. E076 of 2021; in the Estate of the late Akbar Mohammed Haji Ali; and
5. That the cost of this application be provided for.
2. The application is based on the grounds in the body of the Motion, as well as on the supporting affidavit of Ms Amina Akbar Mohamed, sworn on 15th June 2025, in which she averred that the Respondent made an oral application in Kadhi Court Case No. E076 of 2024 and obtained a favourable ruling on 6th April 2023. Thereafter, she filed an application dated 4th May 2024 seeking orders against the applicants for alleged contempt of Court orders issued on 6th April 2023. The application dated 4th May 2024 was allowed on 20th September 2024. She averred that there was no service of the said application. The 1st applicant stated that the Honourable Court ordered that she serves two months in jail for contempt. This forced them to file two applications dated 29th November 2024 and 14th February 2025 seeking to be heard. The said applications proceeded through written submissions. To date, no ruling has been given in respect of the said applications. It was urged that this Court exercise its supervisory jurisdiction to order the Court below to deliver its verdict on the two applications in question. She further prayed that the status quo be maintained until the said rulings are delivered.
3. It was urged that rulings in respect of the two applications had been scheduled to be delivered on 15th May 2025, but were not so delivered, as by then a Court order staying execution of the orders of the court below had been issued by the High Court.
4. In response, the Respondent filed grounds of opposition dated 13th July 2025 in which it was stated that the same lacked merit.
5. The respondent counsel filed the second application. It is dated 15th July 2025. It seeks the following orders:-
1. Spent;
2. The Court be pleased to exercise its supervisory jurisdiction over Mombasa Kadhi Court and to call for the record in Mombasa Kadhi Court Succession Cause No E076 of 2021; in the Estate of the late Akbar Mohamed Haji Ali for purpose of satisfying itself as to the correctness, legality or property of the orders issued by Hon Abdiaziz Maalim Mohamed on 9th July 2025;
3. Upon perusing the record in Mombasa Kadhi Court Case No E076 of 2021, in the Estate of the late Akbar Mohamed Haji Ali, the Court be pleased to set aside and or discharge the order issued by Hon Abdiaziz Maalim Mohamed on 9th July 2025; and
4. The costs of the application should be provided for.
6. The respondent contended that the Court proceedings in the said case were strange, disturbing, and a mockery of justice. It was urged that the appellants filed a memorandum of appeal and, almost contemporaneously, a stay application on 19th and 20th February 2025, respectively. Vide the latter, it sought to stay the execution of the lower Court orders. In a ruling delivered by this Court on 30th May 2025, the application for stay of execution was denied. On 16th June 2025, an application seeking maintenance of the status quo was filed by the appellants. This, too, was dismissed. An oral application for the said orders was also denied.
7. Having not succeeded at the High Court, the appellant filed another application before the Hon Kadhi, the Hon Abdiaziz Maalim Mohamed. The Hon Kadhi reviewed the orders that the Hon Omar K Swaleh made on 20th September 2024, on 26th June 2025 and granted a stay of execution. All this was done ex parte. The learned Kadhi slated the matter for hearing inter partes on 10th September 2025 before another Court.
8. Counsel contended that there was a clear abuse of the Court process, which this Court ought to stop before it could escalate any further. In his affidavit, Mr Mugambi Mutua, learned counsel for the respondent, contended that a subordinate Court, of which the Kadhi’s Court is one, has no power to grant orders denied by the High Court. Furthermore, it was incorrect for the Court to review orders of a Court with concurrent jurisdiction and to certify a matter as urgent, only to schedule it for hearing on a date two months away.
9. Mr. Mugambi deposed that this Court could set the record straight as it has supervisory jurisdiction over the lower Court and had the power to call for the record of the Court below for purposes of satisfying itself as to its correctness, legality, or propriety. In his view, there had been a clear case of abuse of the judicial process, which this Court could stop to prevent further escalation and mockery of the justice system.
10. The appellants opposed the application on the grounds of the opposition dated 13th July 2025. They urged vide the said grounds, through their counsels on record, Messrs. Mutisya, Mwanzia & Ondeng Advocates, that the respondent ought to have appealed the decision if she disagreed with it. In their view, the correct avenue was through an appeal to the Court of Appeal and or review before the same Court. It was urged that supervisory jurisdiction could not be used to set aside and or review orders issued by the subordinate Court when an appeal has not been preferred against such a decision.
11. Parties made oral submissions before me on 24th July 2025.
12. Mr Mwanzia, learned counsel for the appellants, submitted that the Court below had failed to deliver its ruling and that it was on that basis that they were seeking exercise by this Court of its supervisory jurisdiction. He submitted that the exercise by this Court of its supervisory jurisdiction was the only way they could obtain the judgment.
13. He contrasted his application with that of the respondent, saying that the only way the ruling could be delivered is if this Court orders the Court below. The respondent, on the other hand, had the option of either seeking a review of the impugned decision or appealing against it.
14. In his submissions, Mr. Mugambi reiterated the contents of the application he had filed. He urged that this Court had at least three occasions declined to issue orders in favour of the appellants, but that they somehow got the same order before the Court below in a very irregular manner.
15. Mr Mugambi submitted that the lower Court had overruled this Court. He urged that this Court and the Kadhi Court had issued conflicting decisions, and that it was up to this Court to resolve the conflict.
16. According to Mr Mugambi, the proposal by Mr Mwanzia for an appeal or review was meant to delay justice, kick the can down the long grass, injure justice, and contaminate the judicial process. It was urged that I allow Mr Mugambi’s application. Regarding Mr Mwanzia’s application, it was urged that I leave the Court below to manage its diary. That said, it was left to this Court to make its determination.
17. Since both applications seek to have this Court exercise its supervisory jurisdiction, it follows that they accept that the High Court has supervisory jurisdiction over the subordinate Courts.
18. Having stated the foregoing, I note that their agreement is in any case irrelevant. Under Article 165(6) of the Constitution, the High Court has supervisory jurisdiction over “subordinate Courts” and over any person, body, or authority exercising a judicial or quasi-judicial function. Subordinate Courts, according to the Constitution, include, as stated in Article 169(1) (b) thereof, the Kadhis Courts. There can therefore be no question as to this Court’s supervisory jurisdiction.
19. It is a trite law that the Court’s supervisory jurisdiction over the subordinate courts should be exercised sparingly and only in exceptional circumstances. The subordinate courts should, as much as possible, be allowed to operate without let or hindrance.
20. In Alice Sisina v Land Registrar Kajiado & another [2015] eKLR, the Court stated as follows:-
“13. In exercising inherent supervisory powers under Article 165 (6) and (7) of the Constitution. The proceedings and orders granted cannot be allowed to stand the test of legality and propriety. There is, therefore, a constitutional and statutory necessity to set aside the orders against the respondent.”
21. Mativo, J (as he then was) elaborated on the difference between the appellate jurisdiction of the High Court and its supervisory jurisdiction in the case of Republic v Chief Magistrate’s Court at Milimani Law Courts; Director of Public Prosecutions & 2 others(Interested Parties); Ex-parte Applicant: Pravin Galot [2020] eKLR. The learned judge postulated as follows:-
“ 59. There is a clear distinction between supervisory jurisdiction, judicial review jurisdiction and appellate jurisdiction. Supervisory jurisdiction refers to the power of superior courts of general superintendence over all subordinate courts. Through supervisory jurisdiction, superior courts aim to keep subordinate courts within their prescribed sphere and prevent usurpation. In order to exercise such control, the power is conferred on superior courts to issue the necessary and appropriate writs.[42]
60. This power of superintendence conferred by Article 165 (6) of the Constitution, as pointed out by Harries, C.J. in Dalmia Jain Airways Ltd. v Sukumar Mukherjee,[43] is to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors. This power involves a duty on the High Court to keep the inferior courts and tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. But this power does not vest the High Court with any unlimited prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of the Court or Tribunal. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice, where grave injustice would be done unless the High Court interferes. As the Supreme Court of India stated, unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under Article 165 (6) of the Constitution to interfere.”
22. The people of Kenya intended that Courts function within their jurisdiction and that usurpation of powers be avoided at all costs.
23. Applying the above decisions to the matter at hand, I note that the Hon Abdiaziz Maalim Mohamed, in his decision, usurped the authority of the High Court, purported to give orders that directly contradict those that this Court had given, and made a mockery of our hierarchy of Courts. I have perused the application that was filed before the Kadhi. I note that no mention was made of the matter before this Court. The application was filed by a different counsel. In my view, the learned Kadhi was misled into giving orders that he shouldn’t have issued and which he would not have issued in any event had he been provided with all the relevant facts.
24. Although it was held in National Social Security Fund v Sokamania Ltd & another [2021]eKLR that supervisory power should not be exercised where there is an alternative remedy, I am inclined to agree with Mr Mugambi that this is an extraordinary situation that calls for extraordinary remedies. Under the circumstances, I quash the orders issued by the Hon Abdiaziz Maalim Mohamed on 9th July 2025. The same are set aside, vacated, and discharged forthwith.
25. What of the application by the appellants? In my view, the Court below had no reason not to issue its ruling. What this Court had done was to stay the execution of the lower Court’s previous decision. It did not stay the proceedings. By failing to deliver its decision, the Court below neglected its duties. Under those circumstances, I order the Hon Swaleh to issue his ruling in respect of the pending applications within 30 days of the date hereof.
26. On costs, I ordered that the parties bear their costs.
27. It is so ordered.
Dated and signed at Mombasa, this 11th day of August 2025. Delivered virtually through Microsoft TEAMS.
1. Spent;
2. Spent;
3. That this Honourable court be pleased to exercise its supervisory powers over the Mombasa Kadhis' Court in Succession Cause No. E076 of 2021; in the Estate of the late Akbar Mohammed Haji Ali, and do give orders and direct the Kadhis Court to deliver a ruling on the applicants' application dated 29th November 2024 and 14th February 2025, respectively;
4. That upon granting prayer 3, this Honourable Court be pleased to issue an order of status quo to be maintained pending the ruling of the applicant's application dated 29th November 2024 and 14th February 2025, respectively, in Mombasa Kadhi's court in Succession Cause No. E076 of 2021; in the Estate of the late Akbar Mohammed Haji Ali; and
5. That the cost of this application be provided for.
2. The application is based on the grounds in the body of the Motion, as well as on the supporting affidavit of Ms Amina Akbar Mohamed, sworn on 15th June 2025, in which she averred that the Respondent made an oral application in Kadhi Court Case No. E076 of 2024 and obtained a favourable ruling on 6th April 2023. Thereafter, she filed an application dated 4th May 2024 seeking orders against the applicants for alleged contempt of Court orders issued on 6th April 2023. The application dated 4th May 2024 was allowed on 20th September 2024. She averred that there was no service of the said application. The 1st applicant stated that the Honourable Court ordered that she serves two months in jail for contempt. This forced them to file two applications dated 29th November 2024 and 14th February 2025 seeking to be heard. The said applications proceeded through written submissions. To date, no ruling has been given in respect of the said applications. It was urged that this Court exercise its supervisory jurisdiction to order the Court below to deliver its verdict on the two applications in question. She further prayed that the status quo be maintained until the said rulings are delivered.
3. It was urged that rulings in respect of the two applications had been scheduled to be delivered on 15th May 2025, but were not so delivered, as by then a Court order staying execution of the orders of the court below had been issued by the High Court.
4. In response, the Respondent filed grounds of opposition dated 13th July 2025 in which it was stated that the same lacked merit.
5. The respondent counsel filed the second application. It is dated 15th July 2025. It seeks the following orders:-
1. Spent;
2. The Court be pleased to exercise its supervisory jurisdiction over Mombasa Kadhi Court and to call for the record in Mombasa Kadhi Court Succession Cause No E076 of 2021; in the Estate of the late Akbar Mohamed Haji Ali for purpose of satisfying itself as to the correctness, legality or property of the orders issued by Hon Abdiaziz Maalim Mohamed on 9th July 2025;
3. Upon perusing the record in Mombasa Kadhi Court Case No E076 of 2021, in the Estate of the late Akbar Mohamed Haji Ali, the Court be pleased to set aside and or discharge the order issued by Hon Abdiaziz Maalim Mohamed on 9th July 2025; and
4. The costs of the application should be provided for.
6. The respondent contended that the Court proceedings in the said case were strange, disturbing, and a mockery of justice. It was urged that the appellants filed a memorandum of appeal and, almost contemporaneously, a stay application on 19th and 20th February 2025, respectively. Vide the latter, it sought to stay the execution of the lower Court orders. In a ruling delivered by this Court on 30th May 2025, the application for stay of execution was denied. On 16th June 2025, an application seeking maintenance of the status quo was filed by the appellants. This, too, was dismissed. An oral application for the said orders was also denied.
7. Having not succeeded at the High Court, the appellant filed another application before the Hon Kadhi, the Hon Abdiaziz Maalim Mohamed. The Hon Kadhi reviewed the orders that the Hon Omar K Swaleh made on 20th September 2024, on 26th June 2025 and granted a stay of execution. All this was done ex parte. The learned Kadhi slated the matter for hearing inter partes on 10th September 2025 before another Court.
8. Counsel contended that there was a clear abuse of the Court process, which this Court ought to stop before it could escalate any further. In his affidavit, Mr Mugambi Mutua, learned counsel for the respondent, contended that a subordinate Court, of which the Kadhi’s Court is one, has no power to grant orders denied by the High Court. Furthermore, it was incorrect for the Court to review orders of a Court with concurrent jurisdiction and to certify a matter as urgent, only to schedule it for hearing on a date two months away.
9. Mr. Mugambi deposed that this Court could set the record straight as it has supervisory jurisdiction over the lower Court and had the power to call for the record of the Court below for purposes of satisfying itself as to its correctness, legality, or propriety. In his view, there had been a clear case of abuse of the judicial process, which this Court could stop to prevent further escalation and mockery of the justice system.
10. The appellants opposed the application on the grounds of the opposition dated 13th July 2025. They urged vide the said grounds, through their counsels on record, Messrs. Mutisya, Mwanzia & Ondeng Advocates, that the respondent ought to have appealed the decision if she disagreed with it. In their view, the correct avenue was through an appeal to the Court of Appeal and or review before the same Court. It was urged that supervisory jurisdiction could not be used to set aside and or review orders issued by the subordinate Court when an appeal has not been preferred against such a decision.
11. Parties made oral submissions before me on 24th July 2025.
12. Mr Mwanzia, learned counsel for the appellants, submitted that the Court below had failed to deliver its ruling and that it was on that basis that they were seeking exercise by this Court of its supervisory jurisdiction. He submitted that the exercise by this Court of its supervisory jurisdiction was the only way they could obtain the judgment.
13. He contrasted his application with that of the respondent, saying that the only way the ruling could be delivered is if this Court orders the Court below. The respondent, on the other hand, had the option of either seeking a review of the impugned decision or appealing against it.
14. In his submissions, Mr. Mugambi reiterated the contents of the application he had filed. He urged that this Court had at least three occasions declined to issue orders in favour of the appellants, but that they somehow got the same order before the Court below in a very irregular manner.
15. Mr Mugambi submitted that the lower Court had overruled this Court. He urged that this Court and the Kadhi Court had issued conflicting decisions, and that it was up to this Court to resolve the conflict.
16. According to Mr Mugambi, the proposal by Mr Mwanzia for an appeal or review was meant to delay justice, kick the can down the long grass, injure justice, and contaminate the judicial process. It was urged that I allow Mr Mugambi’s application. Regarding Mr Mwanzia’s application, it was urged that I leave the Court below to manage its diary. That said, it was left to this Court to make its determination.
17. Since both applications seek to have this Court exercise its supervisory jurisdiction, it follows that they accept that the High Court has supervisory jurisdiction over the subordinate Courts.
18. Having stated the foregoing, I note that their agreement is in any case irrelevant. Under Article 165(6) of the Constitution, the High Court has supervisory jurisdiction over “subordinate Courts” and over any person, body, or authority exercising a judicial or quasi-judicial function. Subordinate Courts, according to the Constitution, include, as stated in Article 169(1) (b) thereof, the Kadhis Courts. There can therefore be no question as to this Court’s supervisory jurisdiction.
19. It is a trite law that the Court’s supervisory jurisdiction over the subordinate courts should be exercised sparingly and only in exceptional circumstances. The subordinate courts should, as much as possible, be allowed to operate without let or hindrance.
20. In Alice Sisina v Land Registrar Kajiado & another [2015] eKLR, the Court stated as follows:-
“13. In exercising inherent supervisory powers under Article 165 (6) and (7) of the Constitution. The proceedings and orders granted cannot be allowed to stand the test of legality and propriety. There is, therefore, a constitutional and statutory necessity to set aside the orders against the respondent.”
21. Mativo, J (as he then was) elaborated on the difference between the appellate jurisdiction of the High Court and its supervisory jurisdiction in the case of Republic v Chief Magistrate’s Court at Milimani Law Courts; Director of Public Prosecutions & 2 others(Interested Parties); Ex-parte Applicant: Pravin Galot [2020] eKLR. The learned judge postulated as follows:-
“ 59. There is a clear distinction between supervisory jurisdiction, judicial review jurisdiction and appellate jurisdiction. Supervisory jurisdiction refers to the power of superior courts of general superintendence over all subordinate courts. Through supervisory jurisdiction, superior courts aim to keep subordinate courts within their prescribed sphere and prevent usurpation. In order to exercise such control, the power is conferred on superior courts to issue the necessary and appropriate writs.[42]
60. This power of superintendence conferred by Article 165 (6) of the Constitution, as pointed out by Harries, C.J. in Dalmia Jain Airways Ltd. v Sukumar Mukherjee,[43] is to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors. This power involves a duty on the High Court to keep the inferior courts and tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. But this power does not vest the High Court with any unlimited prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of the Court or Tribunal. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice, where grave injustice would be done unless the High Court interferes. As the Supreme Court of India stated, unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under Article 165 (6) of the Constitution to interfere.”
22. The people of Kenya intended that Courts function within their jurisdiction and that usurpation of powers be avoided at all costs.
23. Applying the above decisions to the matter at hand, I note that the Hon Abdiaziz Maalim Mohamed, in his decision, usurped the authority of the High Court, purported to give orders that directly contradict those that this Court had given, and made a mockery of our hierarchy of Courts. I have perused the application that was filed before the Kadhi. I note that no mention was made of the matter before this Court. The application was filed by a different counsel. In my view, the learned Kadhi was misled into giving orders that he shouldn’t have issued and which he would not have issued in any event had he been provided with all the relevant facts.
24. Although it was held in National Social Security Fund v Sokamania Ltd & another [2021]eKLR that supervisory power should not be exercised where there is an alternative remedy, I am inclined to agree with Mr Mugambi that this is an extraordinary situation that calls for extraordinary remedies. Under the circumstances, I quash the orders issued by the Hon Abdiaziz Maalim Mohamed on 9th July 2025. The same are set aside, vacated, and discharged forthwith.
25. What of the application by the appellants? In my view, the Court below had no reason not to issue its ruling. What this Court had done was to stay the execution of the lower Court’s previous decision. It did not stay the proceedings. By failing to deliver its decision, the Court below neglected its duties. Under those circumstances, I order the Hon Swaleh to issue his ruling in respect of the pending applications within 30 days of the date hereof.
26. On costs, I ordered that the parties bear their costs.
27. It is so ordered.
Dated and signed at Mombasa, this 11th day of August 2025. Delivered virtually through Microsoft TEAMS.