Skip to content
JudgmentDAVID KANDIE VS PHNNY VIYANCE AGUMBA15 min read

DAVID KANDIE VS PHNNY VIYANCE AGUMBA

High Court at Kwale High Court · · Andayi W.F.

  • (Being an Appeal from the Ruling and order of Hon. Wendo Shaban Wendo Kadhi II in Kadhi’s Court, Kwale in Succession Cause No. 155 of 2018, delivered on 27/2/2019)

    RULING
    1. The applicant filed the Notice of Motion herein dated 26/8/2024 supported by his affidavit sworn on the same day and supplementary affidavit sworn on 17/1/2025. He seeks leave to appeal out of time against the whole ruling of Hon. Wendo Shaban Wendo, Kadhi II delivered on 27/2/2019 at Kadhi’s Court in Kwale Succession Cause No.155 of 2018 - In the Matter of the Estate of Mwanajuma Hamisi Chande and also that the appeal dated 26/8/2024 be deemed as properly filed and served. 
    2. The application is filed under Article 159(2)(d) of the Constitution, Sections 3A, 63E, 79G & 95 of the Civil Procedure Act (Cap. 75) Laws of Kenya and Order 50 Rule 6 of the Civil Procedure Rules, 2010.
    3. The respondent has opposed the application through a replying affidavit sworn on 8/10/2024 and grounds of opposition dated 9/9/2024.
    4. The application was canvassed by way of written submissions filed by learned counsels for both parties.
    5. A background to this application which is easily discernible from the affidavits and the annexures thereto filed by both parties is as follows.
    6. The Kadhi’s Court at Kwale on 25/5/2018 issued the following orders (Annex DK 3) in Succession Cause No. 155 of 2018, In the Matter of the Estate of Mwanajuma Hamisi Chande (Deceased) and Ali Hamisi Chande (Petitioner):
    a. That parcels of land Kwale/Diani S.S/2845, Kwale/Diani S.S/2846, Kwale/Diani S.S/2847 and Kwale/Diani S.S/2848 constitute the estate of the above-mentioned deceased.
    b. That Mwanajuma Hamisi Chande survived by his full brother Ali Hamisi Chande, the petitioner herein.
    c. That the above-mentioned parcels of land be and is hereby vested Ali Hamisi Chande the sole heir of the deceased.
    d. That the District Land Registrar Kwale to effect transmission of the estate to her heir accordingly.
    7. The applicant herein David Kandie, as an Objector filed an application dated 28th December 2018 for revocation of the grant issued to Hamisi Chande. In response, the respondent in that application Hamisi Chande filed a notice of preliminary objection on grounds that the Kadhi’s court lacked jurisdiction to entertain or hear the application where one party to the proceedings did not profess the Muslim religion, and secondly that the court lacked jurisdiction to hear and determine any dispute relating to title to land or rectification of the land register and finally that the applicant was a stranger to the court and therefore he was incompetent to file any application and/or proceedings before the court as he was not subject to the jurisdiction of the Kadhis Court. In a ruling dated 7th February 2019 the Kadhi’s court upheld the preliminary objection. It is that ruling that the applicant herein seeks to set aside through the memorandum of Appeal dated 26th of August 2024 and filed hearing and thus the present application seeking extension of time to have the appeal admitted for hearing out of time.
    8. After the Kadhi’s court decision, the applicant herein David Kandie moved to the Environment and Land Court at Mombasa through a Constitutional Petition No. 11 of 2019 as the petitioner against the Land Registrar Kwale, as the 1st respondent, Kadhi’s Court Kwale as the 2nd respondent and Ali Hamisi Chande as the 3rd respondent seeking to set aside the ruling delivered by the Kadhis Court at Kwale of 7th February 2019. The Environment and Land Court found in favor of the applicant, David Kandie, and set aside the Kadhi’s court ruling of 7th February 2019.
    9. Ali Hamisi Chande, together with another filed a further appeal being Civil Appeal No. E017 of 2020 at the Court of Appeal in Mombasa, which was consolidated with another appeal filed by Rutune Limited with David Kandie, Land Registrar Kwale and Kadhis Court, Kwale as the respondents in both appeals. The Court of Appeal in a judgment delivered on 31st March. 2023 allowed the appeal and set aside the judgment and orders by the Environment and Land court at Mombasa delivered on 12th May 2020 in Petition No. 11 of 2019 in their entirety and ordered that Petition No. 11 of 2020 in the ELC be struck out. The Court of Appeal also ordered that the titles of the parcels of land known as Kwale/Diani settlement scheme/2845, Kwale/Diani Diani settlement scheme/2846, Kwale/Diani Diani settlement scheme/2847 and Kwale/Diani Diani settlement scheme/2848 shall accordingly revert to the persons registered as owners on 12th May 2020 being the date of delivery of the impugned judgment by the Environment and Land Court.
    10. After the decision of the Court of Appeal, the applicant has now filed an appeal to this court challenging the ruling of the Kadhi’s Court of 7th February 2019.
    11. Alongside that appeal, the applicant filed the present application outlining several grounds most of which in my understanding would be the grounds to be argued in the appeal. For the present application seeking leave to file the appeal out of time, the ground in support is that the delay in filing the appeal was occasioned by the filing of the constitutional petition in the ELC and the hearing and determination of the appeal arising therefrom at the Court of Appeal and further that the respondent will not be affected by the grant of leave to appeal out of time as they will have an opportunity to be heard.
    12. In opposing the application, the respondent avers that:
    a. the intended appeal is time barred and there has been inordinate delay of over 5 years from the date when the ruling that is sought to be appealed against was delivered and applicant has failed to give sufficient grounds for the delay to warrant this Court to exercise its discretionary powers to grant leave to the applicant file appeal out of time.
    b. the appeal and the application are fatally defective, incompetent, null and void ab initio since the respondent herein does not have capacity to defend the matters herein on behalf of the late ALI HAMISI CHANDE.
    c. the application herein is fatally defective, incompetent null and void ab initio for having been filed by a stranger to the proceedings in the primary suit and the applicant has failed to demonstrate what interest he has on all those properties registered as KWALE/ DIANI /2845 to 2848. 
    d. the mere existence of pleadings in the previous Courts in which the applicant herein was a party, does not warrant his participation in the proceedings herein since he must demonstrate what interest he has on the property.
    13. Learned counsel for the applicant has cited sections 79G and 95 of the Civil Procedure Act on the power of this court to extend time to appeal and submits that this court should exercise its discretion in favour of the applicant. Learned counsel submits that the delay in filing the appeal was not intentional as the applicant had filed the constitutional petition which was initially allowed by the High Court (sic)(it was the ELC) but that decision was later overturned by the Court of Appeal.  
    14. Learned counsel for the applicant submits further that in its judgment, the Court of Appeal advised that it was proper for the applicant to appeal the decision of the Kadhi’s court to the High Court Family Division. He has cited the following paragraph from the said judgment to support his assertion:
    “…the effect of the orders granted by the trial Court (the ELC) was that the decision of the Kadhi’s Court was set aside by declaring it unconstitutional and unlawful. Quite apart from the fact that the said finding of unconstitutionality and illegality was made without any basis as illustrated in the foregoing, section 50 (2) of the Law of Succession Act in this respect also provides that, “an appeal shall lie to the High Court in respect of any order or decree made by a Kadhi’s Court in respect of the estate of a deceased Muslim and with the prior leave thereof in respect of any point of Muslim law, to the Court of Appeal.” It is trite that statutory procedures and mechanisms are required to be exhausted before resorting to other remedies,…”
    15. My understanding of the cited paragraph is that the Court of Appeal was pointing out a procedural lapse by the applicant in filing a supposed constitutional reference before the ELC instead of proceeding as per what section 50(2) of the Law of Succession Act provides with respect to appeals and not proffering advise on how the applicant should henceforth proceed with his appeal.
    16. Learned counsel for the applicant further submits that it is a misapprehension of the law to argue that the issue of ownership of property of a deceased person can be addressed by the ELC as the law provides that the property of a deceased person can only be transmitted to a beneficiary under section 3(1) of the LSA.
    17. Learned counsel further submits that the application has merit with high chances of success his main contention being that the subject properties did not form part of the free property of the estate of the deceased Mwanajuma Hamisi Chande.
    18. Learned counsel for the respondent on his part submits that the delay in filing the appeal herein, that is 5 years and 5 months after the decision of the Kadhi’s court and 1 year and 5 months after the decision of the Court of Appeal is inordinate and has not been explained.
    19. Learned counsel further submits that since the memorandum of appeal is already on record, though illegally, that is without first obtaining the extension of time, the application has already been overtaken by events and the same is for striking out.
    20. Learned counsel submits that the Court of Appeal having already determined the issue of the ownership of the subject properties forming part of the property of the deceased’s estate the application herein amounts to asking this court to overturn the decision of the Court of Appeal delivered on 31/3/2023.
    21. Learned counsel submits that the respondent herein is not a competent party to the appeal as she lacks the legal capacity since the Letters of Administration Ad litem relied upon by the applicant were issued only limited for purposes of defending Kwale civil suit ELC No. 80 of 2018 active and pending in court and the intended appeal at the Supreme Court in respect of the deceased’s estate of all those properties registered as Kwale/Diani S.S/2846 to Kwale/Diani S.S/2848 and not to defend the proceedings herein.
    22. Learned counsel further submits that the application is incompetent because the applicant/appellant and the respondent are strangers to the primary proceedings as they were not parties therein.
    23. I have considered the application and the submissions by learned counsels. The issue for determination is whether the application meets the requirements for the court to grant an extension to file the appeal out of time.
    24. The proviso to section 79G of the Civil Procedure Act grants this court the power to enlarge time within which to file an appeal where good and sufficient cause is shown by the appellant in the following terms:
    S. 79G. “Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order:-
    Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.”
    25. The decision on whether or not to extend time is discretionary and the principles the court considers are set out in the case of Leo Sila Mutiso v Rose Hellen Wangari Mwangi - Civil Application No. NAI 255 of 1997 (unreported) as cited in the case of Stanley Kaiyongi Mwenda v Cyprian Kubai [2000] eKLR that:
    "It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary. It is also well settled that in general the matters which this Court takes into account in deciding whether to grant an extension of time are first the length of the delay secondly, the reason for the delay, thirdly (possibly) the chances of the appeal succeeding if the application is granted and fourthly, the degree of prejudice to the respondent if the application is granted".
    26. A period of 5 years and 5 months to seek leave to file an appeal is no doubt inordinate. The applicant proffers the reason that he had opted to file a constitutional petition. The Court of Appeal found that in fact, that was not a constitutional petition as it did not raise constitutional questions and the issues raised therein could be determined in an ordinary suit. The Court of Appeal held that:
    “It is therefore our finding that there was no constitutional question that was presented before the trial Court for determination, and on the contrary, the dispute revolved around questions of fact that were acknowledged by the trial Court as capable of being resolved in an existing suit namely Kwale CMCC ELC 80 of 2018. The choice of procedure employed of a constitutional petition, and the entire proceedings in the trial Court were therefore an abuse of the process of Court, as the intended outcome was not to ventilate any constitutional issues, but to unprocedurally assert private rights.
    … even though the suit before it was in the guise of a constitutional petition, it was clearly a collateral attack on the decision of the Kadhi’s Court in Kwale Kadhi’s Court Succession Cause No 155 of 2018.” (emphasis mine).
    27. The reason for the delay advanced by the applicant is that he had filed the constitutional petition which ended up at the Court of Appeal. It is apparent from the foregoing finding of the Court of Appeal that the applicant herein chose to ventilate his challenge to the Kadhi’s court decision by disguising it as a constitutional petition and not by way of appeal to the High Court as provided for under Section 50(2) of the Law of Succession Act. No doubt he was very satisfied with the decision of the ELC. Only after the Court of Appeal overturned the same did he turn around and come back to what he should have done 5½ years before. That to me cannot be a good and sufficient cause to persuade this court to exercise its discretionary power to extend time to file the appeal.
    28. The next issue is the chances of the appeal succeeding if the application is granted. I have perused a copy of the impugned Ruling dated 27/2/2019 annexed to the application and the Memorandum of Appeal filed herein.
    29. I do not agree with learned counsel for the applicant that this dispute should be ventilated before this court as an appeal under section 50(2) of the Law of Succession Act (Cap 160) Laws of Kenya. The issue raised by the applicant in seeking to upset the decision of the Kadhi’s court is clearly over title to the subject parcels of land. I think learned counsel is convoluting issues when he in one breath refers to “the issue of ownership of property of a deceased” and transmission of the property of a deceased person to a beneficiary. The former falls under the jurisdiction of the ELC while the later falls under the succession court. The issue raised by the applicant challenging the title as acquired by the deceased falls under the former.
    30. The Law of Succession Act applies to cases of intestate and testamentary succession to the estate of deceased persons as provided for under Section 2 (1) of the Act that:
    “ … the provisions of the act shall have universal application to all cases  of intestate or testamentary  succession to the estates of deceased  persons dying after  the commencement  of this Act to the administration  of the estates of those person”.
    31. Therefore, only a person claiming beneficial interest in the property of a deceased person can stake his claim in a succession cause.  Such a person is either a dependent within the meaning of Section 29 of the Act, or a person entitled to benefit from distribution of the estate pursuant to Section 35 of the Act and any other person who may have been given any of the properties or bought the same during the life time of the deceased person. Where a dispute arises in any of the above instances then a court in accordance with Section 66 and 70 of the Act shall proceed and determine the dispute. But where the claim is over the ownership of the property as the case herein, that is not within the province of the law of succession. The Kadhi’s court herein was dealing with issues of succession. The learned Kadhi was therefore correct in his determination that the applicant not being a Moslem, his case could not be heard by the Kadhi’s court.
    32. Assuming, for instance, that the deceased was alive today, it is obvious that the applicant would have filed suit before the ELC for determination of the issue of ownership of the land. The Kadhi’s court having vested the property in the respondent, Ali Hamisi Chande by way of transmission from the deceased, I do not understand why the applicant could not take the route of suing Ali Hamisi Chande in the ELC. He is choosing the route of appealing a decision of the Kadhi’s court in a succession cause whose jurisdiction is circumscribed by the constitution and the Kadhi’s Court’s Act. It is not going to take him anywhere.
    33. The Court of Appeal made reference to this issue in paragraph 23 of the Judgment when it said that there was an express acknowledgment by the trial Court (the ELC) that the petition before it could be determined in an ordinary suit, and for that matter the petition did not raise constitutional questions. The ordinary suit referred to by the Court of Appeal and which the ELC had alluded to in its judgment was certainly not the Kadhi’s court sitting in a succession cause. The Court of Appeal went on further to observe that “…the dispute revolved around questions of fact that were acknowledged by the trial Court as capable of being resolved in an existing suit namely Kwale CMCC ELC 80 of 2018.” The Court of Appeal thus informed the applicant that the issues he was raising through the alleged constitutional petition before the ELC would be determined in the Kwale CMCC ELC 80 of 2018. That I find is the proper forum for him to proceed to have his case challenging the ownership of the land by Mwanajuma Hamisi Chande (deceased) or the transmission thereof to Ali Hamisi Chande (also deceased) and any subsequent beneficiaries. The issue cannot be resolved through a succession cause as he is seeking to do herein. Luckily for him, that case is alive and proceeding. Consequently, I find that there are no chances that the appeal will succeed.
    34. Finally, there is no doubt that the respondent will suffer great prejudice if time is extended to the applicant to file the appeal. The delay in filing the appeal was occasioned by the applicant. It is not fair for the respondent to keep waiting upon him forever. Secondly, the applicant has a pending case against the respondent in Kwale CMCC ELC 80 of 2018 which is active. This is the case that the Court of Appeal said was the proper forum for him to prosecute his matters. There is therefore no point in him pursuing the avenue of appeal where there are no chances of success.
    35. For the foregoing reasons, I find that the application herein is without merit and the same is dismissed with costs to the respondent.
    36. Dated, signed and delivered at Kwale on the Virtual Platform, Teams this 10th of February 2025.

    ANDAYI W. F.
    JUDGE
    In the presence of:
    Ondabu for Applicant.
    Mungai for the Respondent.
    Johnson Court Assistant.
    This decision is uploaded on the Judiciary Case Tracking System for immediate access by the parties upon upload.

    DAVID KANDIE VS PHNNY VIYANCE AGUMBA DAVID KANDIE VS PHNNY VIYANCE AGUMBA