1. Vide an application dated 24th May 2024, the applicant sought the following six orders
(1) Spent;
(2) Spent;
(3) That pending the hearing and final determination of this application, this honourable court do issue a temporary stay of proceedings, particularly the delivery of the ruling slated for delivery on 13th June 2024 in Chief Kadhi’s Succession Cause No. 63 of 2013;
(4) That the honourable Court be pleased to order the transfer of Mombasa Chief Kadhi Succession Cause No 68 of 2013 to the High Court Family Division Mombasa;
(5) Any other orders that the Court may deem fit to grant for expeditious disposal of the matter; and
(6) That the costs of this application be provided for.
2. The applicant contended that it was the registered owner of all that parcel of Land known as Plot No 1948/V/MN (CR 32564) (mother title LR No 287/V/MN CR 6302). It was stated that the said property was wrongly indicated as being part of the estate of the late Mbarak Awadhi Salim by virtue of a Court order issued on 18th June 2013.
3. This court, in a judgment delivered on 21st October 2022 by Onyiego, J, removed the said property from the list of assets to be distributed by the estate of the late Mbarak Awadhi Salim.
4. The ownership of the suit premises was also the subject of a case before the Environment & Land Court. The said court ruled for the Applicant. The decision was overturned by the Court of Appeal. Being dissatisfied with the said decision, the applicant had lodged an appeal at the Supreme Court, which it reckoned had a high chance of success.
5. It was urged that for as long as the matter was in Court, the property ought not to be subject to distribution but that the Respondent had since moved to the Kadhi’s Court seeking to have the said properly distributed.
6. It was urged that the Kadhi’s Court had the jurisdiction to hear the matter as not all parties were Muslims and under the doctrine of lis pendens and sub judice as the matter was live at the Supreme Court.
7. It was thus urged that orders sought ought to be issued in the interest of justice so that the applicant could pursue the appeal at the Supreme Court.
8. The application was opposed by the Respondent vide a replying affidavit he swore on June, 2024. The respondent averred that he was the legal representative of the estate of his late grandfather, Mbarak Awadhi Salim.
9. He stated solemnly that there was no issue pending determination before the Hon. Kadhi save for the Kadhi to review and rectify his orders given on 12th June 2013, as directed by the judge of the High Court of Kenya at Mombasa in HCP & A No E014 of 2020. It was stated that the Court of Appeal found that the suit premises belonged to the estate. That being the case he had filed a cause before the Court below seeking the listing of the said property as part of the properties of the estate. It was urged that the Kadhi would be acting pursuant to the directions of this Court.
10. It was urged that the appeal the respondent had filed against the decision of Onyiego J had been withdrawn. The respondent urged this Court to disallow the application.
11. The applicant’s director, Harji Goud Ruda, filed a Supplementary affidavit sworn on 2nd July 2024, in which it was reiterated that the ownership dispute was before the Supreme Court and that there were high chances of success as the respondent does not have any legitimate claim whatsoever over the suit property.
12. It was urged that not allowing the application would violate the applicant’s right to be heard at the Supreme Court and “violate known legal principles and doctrines to the detriment of the applicant herein”.
13. The submissions of the applicant are dated 1st July 2024.
14. In the submissions, the applicant gave background information about the suit property.
15. It was submitted that under the doctrine of lis pendens, nothing ought to be done that would prejudice the parties pending hearing of the matter. Counsel for the applicant urged that the Court of Appeal in Naftali Ruth Kinyua vs Patrick Thuita Gachure & another [2012]eKLR held that the doctrine of lis pendens was applicable in Kenya and for that reason the proceedings before the Kadhi ought to be stopped until the Supreme Court Petition No E009 of 2024; Freedom Ltd vs Omar Awadhi & others was heard.
16. Counsel submitted that there was a matter before the Supreme Court, which made the case before the Court below subjudice.
17. It was urged that the Court below had no jurisdiction to hear the matter as not all the parties are Muslims. I was referred to Article 170(5) of the Constitution to support the argument.
18. It was also urged that this Court should exercise its supervisory jurisdiction to ensure the fair administration of justice. Counsel submitted that the application be allowed as prayed in terms of prayers 4 and 5 of the said application.
19. The submissions of the respondent are dated 17th July 2024.
20. It was submitted that the issues for determination were whether there had been non-disclosure of material facts and whether the honourable Court is functus officio.
21. It was urged that the Court of Appeal conclusively dealt with the issue of ownership of the suit premises, and the original stay order was issued without full knowledge of the said fact.
22. It was urged that the Court was functus officio as it had rendered its final decision, which was final and conclusive. It was also urged that the application was also res judicata.
23. Counsel thus urged that the application be dismissed and the cost thereof be awarded to the respondent.
24. I have considered the application and the affidavits in support thereof, the response thereto, as well as the submissions of the parties. I must now determine if the application has merit and ought to be allowed.
25. In paragraph 38 of the ruling of Onyiego J delivered on 21st October 2022, the learned judge stated as follows:-
“(a)(iii) “that upon determination of the said dispute, parties shall be at liberty to move the Kadhi’s Court for review of its orders dated 2013 so as to include the property in case the ELC decision is in favour of the estate.”
26. It would appear that the Respondent moved to the Kadhi’s Court after the delivery of the Court of Appeal decision. The judgment of the appellate Court has not been stayed either by itself or the Supreme Court. In the circumstances the Respondent correctly went to the Kadhi Court pursuant to the directions of this Court contained in the ruling dated 21st October 2022.
27. Given the said facts I do not see how the Hon. Kadhi can be faulted.
28. Having said so, Article 165(7) gives the High Court the jurisdiction to make “any order or give any directions of considers appropriate to ensure the fair administration of justice”. There is a pending matter before the apex Court. In my view, it would be in the interest of justice to have the Supreme Court make its determination first so that in the event the appellant is successful, its appeal is not rendered nugatory.
29. In the circumstances, I order a stay of proceedings before the Kadhi Court until the Supreme Court makes its final determination.
30. I make no orders as to costs.
31. Orders accordingly.
Dated and signed at Mombasa this 27th day of September 2024. Delivered virtually through Microsoft TEAMS.
(1) Spent;
(2) Spent;
(3) That pending the hearing and final determination of this application, this honourable court do issue a temporary stay of proceedings, particularly the delivery of the ruling slated for delivery on 13th June 2024 in Chief Kadhi’s Succession Cause No. 63 of 2013;
(4) That the honourable Court be pleased to order the transfer of Mombasa Chief Kadhi Succession Cause No 68 of 2013 to the High Court Family Division Mombasa;
(5) Any other orders that the Court may deem fit to grant for expeditious disposal of the matter; and
(6) That the costs of this application be provided for.
2. The applicant contended that it was the registered owner of all that parcel of Land known as Plot No 1948/V/MN (CR 32564) (mother title LR No 287/V/MN CR 6302). It was stated that the said property was wrongly indicated as being part of the estate of the late Mbarak Awadhi Salim by virtue of a Court order issued on 18th June 2013.
3. This court, in a judgment delivered on 21st October 2022 by Onyiego, J, removed the said property from the list of assets to be distributed by the estate of the late Mbarak Awadhi Salim.
4. The ownership of the suit premises was also the subject of a case before the Environment & Land Court. The said court ruled for the Applicant. The decision was overturned by the Court of Appeal. Being dissatisfied with the said decision, the applicant had lodged an appeal at the Supreme Court, which it reckoned had a high chance of success.
5. It was urged that for as long as the matter was in Court, the property ought not to be subject to distribution but that the Respondent had since moved to the Kadhi’s Court seeking to have the said properly distributed.
6. It was urged that the Kadhi’s Court had the jurisdiction to hear the matter as not all parties were Muslims and under the doctrine of lis pendens and sub judice as the matter was live at the Supreme Court.
7. It was thus urged that orders sought ought to be issued in the interest of justice so that the applicant could pursue the appeal at the Supreme Court.
8. The application was opposed by the Respondent vide a replying affidavit he swore on June, 2024. The respondent averred that he was the legal representative of the estate of his late grandfather, Mbarak Awadhi Salim.
9. He stated solemnly that there was no issue pending determination before the Hon. Kadhi save for the Kadhi to review and rectify his orders given on 12th June 2013, as directed by the judge of the High Court of Kenya at Mombasa in HCP & A No E014 of 2020. It was stated that the Court of Appeal found that the suit premises belonged to the estate. That being the case he had filed a cause before the Court below seeking the listing of the said property as part of the properties of the estate. It was urged that the Kadhi would be acting pursuant to the directions of this Court.
10. It was urged that the appeal the respondent had filed against the decision of Onyiego J had been withdrawn. The respondent urged this Court to disallow the application.
11. The applicant’s director, Harji Goud Ruda, filed a Supplementary affidavit sworn on 2nd July 2024, in which it was reiterated that the ownership dispute was before the Supreme Court and that there were high chances of success as the respondent does not have any legitimate claim whatsoever over the suit property.
12. It was urged that not allowing the application would violate the applicant’s right to be heard at the Supreme Court and “violate known legal principles and doctrines to the detriment of the applicant herein”.
13. The submissions of the applicant are dated 1st July 2024.
14. In the submissions, the applicant gave background information about the suit property.
15. It was submitted that under the doctrine of lis pendens, nothing ought to be done that would prejudice the parties pending hearing of the matter. Counsel for the applicant urged that the Court of Appeal in Naftali Ruth Kinyua vs Patrick Thuita Gachure & another [2012]eKLR held that the doctrine of lis pendens was applicable in Kenya and for that reason the proceedings before the Kadhi ought to be stopped until the Supreme Court Petition No E009 of 2024; Freedom Ltd vs Omar Awadhi & others was heard.
16. Counsel submitted that there was a matter before the Supreme Court, which made the case before the Court below subjudice.
17. It was urged that the Court below had no jurisdiction to hear the matter as not all the parties are Muslims. I was referred to Article 170(5) of the Constitution to support the argument.
18. It was also urged that this Court should exercise its supervisory jurisdiction to ensure the fair administration of justice. Counsel submitted that the application be allowed as prayed in terms of prayers 4 and 5 of the said application.
19. The submissions of the respondent are dated 17th July 2024.
20. It was submitted that the issues for determination were whether there had been non-disclosure of material facts and whether the honourable Court is functus officio.
21. It was urged that the Court of Appeal conclusively dealt with the issue of ownership of the suit premises, and the original stay order was issued without full knowledge of the said fact.
22. It was urged that the Court was functus officio as it had rendered its final decision, which was final and conclusive. It was also urged that the application was also res judicata.
23. Counsel thus urged that the application be dismissed and the cost thereof be awarded to the respondent.
24. I have considered the application and the affidavits in support thereof, the response thereto, as well as the submissions of the parties. I must now determine if the application has merit and ought to be allowed.
25. In paragraph 38 of the ruling of Onyiego J delivered on 21st October 2022, the learned judge stated as follows:-
“(a)(iii) “that upon determination of the said dispute, parties shall be at liberty to move the Kadhi’s Court for review of its orders dated 2013 so as to include the property in case the ELC decision is in favour of the estate.”
26. It would appear that the Respondent moved to the Kadhi’s Court after the delivery of the Court of Appeal decision. The judgment of the appellate Court has not been stayed either by itself or the Supreme Court. In the circumstances the Respondent correctly went to the Kadhi Court pursuant to the directions of this Court contained in the ruling dated 21st October 2022.
27. Given the said facts I do not see how the Hon. Kadhi can be faulted.
28. Having said so, Article 165(7) gives the High Court the jurisdiction to make “any order or give any directions of considers appropriate to ensure the fair administration of justice”. There is a pending matter before the apex Court. In my view, it would be in the interest of justice to have the Supreme Court make its determination first so that in the event the appellant is successful, its appeal is not rendered nugatory.
29. In the circumstances, I order a stay of proceedings before the Kadhi Court until the Supreme Court makes its final determination.
30. I make no orders as to costs.
31. Orders accordingly.
Dated and signed at Mombasa this 27th day of September 2024. Delivered virtually through Microsoft TEAMS.