REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MARSABIT
CIVIL APPEAL NO. E001 OF 2026
HUSSEIN JILLO TONA…………………..……...…….………1 st APPELLANT
DHAHABO JILLO TONA……………………………………..2 nd APPELLANT
SAID JILLO TONA……………………………………………..3 rd APPELLANT
MOHAMEDNUR JILLO TONA………………………………4 th APPELLANT
VERSUS
MOHAMUD JILLO TONA………………… ………………. RESPONDENT
( BEING AN APPEAL FROM THE RULING OF HON MUSTAFA GUYO SHUNU (PRINCIPAL KADHI) DELIVERED ON 24 th DECEMBER 2025 IN MARSABIT KADHI CASE KCSUCC No. E024 OF 2022)
ARISING BETWEEN
HUSSEIN JILLO TONA…………………..……...…….………1 st PETITIONER
DHAHABO JILLO TONA……………………………………..2 nd PETITIONER
SAID JILLO TONA……………………………………………..3 rd PETITIONER
MOHAMEDNUR JILLO TONA………………………………4 th PETITIONER
VERSUS
MOHAMUD JILLO TONA………………… …….……………. RESPONDENT
J U D G EM E N T
A. Introduction
1. This Appeal challenges the Ruling-Order issued by Hon Mustafa .G. Shunu (Principal Kadhi) in MARSABIT SUCCESSION CAUSE NO KCSUCC E024 of 2023 , dated 24 th December, 2025, where he held that the Appellants are entitled to inherit 25% of the suit property, while the respondents occupies 75% of the inherited property, and further held that the appellants do carry out construction on their inherited portion within 30 days. The OCS Marsabit police station was to ensure compliance.
2. Being dissatisfied with the said ruling, the Appellants filed their Memorandum of Appeal dated 2 nd January 2026 and raised six (6) grounds of Appeal, namely;
a. THAT the honourable Kadhi erred in law and fact in holding that the appellants inherit 25% of the inherited suit property while the respondent occupies 75% of the inherited suit property.
b. THAT the honourable Kadhi erred in law and in fact in holding that the Appellants carry out construction within thirty (30) days which is practically impossible and against their will.
c. THAT the honourable Kadhi erred in law and fact in failing to find that the suit property equally belongs to both parties as beneficiaries of the estate of their deceased father.
d. THAT the honourable Kadhi erred in law and fact in holding that a survey shall be conducted to strictly sub divide twenty-five (25%) of the suit property amongst the Appellants herein while the respondent occupies seventy-five (75%) of the said property.
e. THAT the learned Kadhi erred in law and in fact in failing to find that the appellants had presented a justifiable cause to enable the Honourbale court grant the orders sought in the Application dated 13 th November, 2025.
f. THAT the learned magistrate erred in fact and law by failing to consider all the materials placed before him and making a ruling limited to only a few issues without considering all the material placed before the court for consideration and determination
3. The appellant therefore prayed that the ruling/order of the trial court be set aside and that their execution application dated 13 th November 2023, be allowed with costs.
B. Facts of the Case
4. The parties herein are all children/beneficiaries of the late Jillo Tona (Deceased) , who died sometimes in the year 1990. The Appellants moved court in 2023 to have his estate distributed and after the parties were heard, the learned Kadhi delivered his judgment dated 22 nd January 2024, where he ascertained that the respondent occupies 75% of Plot 134 situated in old town-Marsabit, which belonged to the estate and directed him to choose the lesser of the two evils, either allow the appellants to put up structures for income generating in a similar way he did and/or in the alternative if he declines the court would distribute the estate in the following manner;
a) That each son is entitled to 22.22% summing to 88.89%, while the daughter will receive 11.11% of the deceased estate.
b) That in exercising the power of discretion, which is wide, the court deems it fit and just to deduct 2% share from the 3 Sons, summing to 6%, which extra portion is awarded to the respondent and he thus receives 28% of the deceased estate.
5. Upon delivery of the said judgment, the parties could not agree on its implementation and subsequently, the appellants moved the Kadhi’s court vide their application dated 13 th November 2025 to enforce the said judgment. Simultaneously the respondent also filed a letter dated 10 th November 2025, seeking the courts intervention to facilitate demarcation/delineation of the suit parcel in line with the decree dated 22 nd January 2022.
6. It is upon determination of the said application/letter that the Honourable Kadhi did deliver the impugned ruling dated 24 th December 2025, the subject of this Appeal.
C. The Appeal
7. The Appeal was canvassed by way of written submissions.
(i) The Appellants' Submissions .
8. The Appellants relied on their submissions dated 30 th March 2026, where they emphasized that it was not contested that they were the rightful heirs of the deceased estate and were entitled to their share as per the Islamic law. It was therefore blatantly wrong for the learned Kadhi to award the respondent 75% share of the Estate property, while leaving the remaining beneficiaries with a small portion, to share. Further, the learned Kadhi had acted beyond his powers to direct that they undertake construction within 30 days, which was impractical and against their will.
9. The Appellants thus urged the court to find that their Appeal had merit and proceed to set aside the mode of distribution as decreed by the learned Kadhi.
(ii) The Respondents' Submissions .
10. The respondent relied on his submissions dated 27 th April 2026, where he averred that this appeal was misconceived and fundamentally defective for it purports to challenge the impugned ruling dated 24 th December 2025, while the substantive determination (judgement) earlier delivered remained in force, undisturbed. An appeal could not lie against an ancillary ruling, while leaving the substantive judgment intact.
11. Secondly, the learned Kadhi had determined that the respondent had lived on the suit property for a period of over 30 years, constructed residential houses and rental units thereon, which developments had been done openly and with the knowledge of the respondents, and the trial court was right not to disturb the respondent’s occupation thereof.
12. Finally, it was also submitted that the respondents had participated in a Shura meeting (family consultations) presided over by the clan elders, and the agreed resolutions filed in court by the parties on 16 th November 2023.The appellants had not proved/demonstrated that the said resolutions was procured through fraud, coercion, or misrepresentation and thus the trial magistrate could not be faulted for upholding the same. Further, it was his contention that the appellants were also stopped by the doctrine of estoppel from challenging the same since they had participated in the said deliberations and agreed on the resolution passed. Reliance was placed in the case of Hirani Vs Kassam (1952) EACA 131, Flora N Wasike Vs Destimo Wamboko (1988) Eklr & Brooke Bond Liebig (T) Mallya EA 266 for emphasis.
13. It was emphasized that the learned Kadhi had carefully considered the evidence and delivered a balanced and equitable decision, taking into account the inheritance rights of the parties, and the respondents long standing occupation and development of the suit property.
14. He thus urged the court to dismiss the Appeal with costs to him.
D. Analysis and Determination .
15. I have considered the pleadings, evidence presented, and submissions of the parties in this appeal. I have also considered the counsel of the two assessors Kadhi’s consulted over this Appeal. This court, first and foremost, is enjoined to subject the whole proceedings to fresh scrutiny and make its own conclusions. As held in Selle & Another Vs Associated Motor Boat Co ltd & others (1968) EA 123 it was stated that;
“ I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial by the high court is by way of retrial and the principals upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusion though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally. ( Abduk Hammed Saif V Ali Mohammed Sholan (1955), 22 E.A.C.A 270,
16. Also, in the court of appeal case of Ephantus Mwangi and Another Vs Duncan Mwangi Civil Appeal No 77 of 1982 {1982 -1988}1KAR 278 the appellate court did state that;
“A member of an appellate court is not bound to accept the learned judge’s findings of fact if it appears either that (a) he has clearly failed on some point to take account of particular circumstances or probabilities material to an estimate of the evidence, or (b) if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”
17. The issues which arise for determination in this appeal are;
a) Whether the learned Kadhi properly correctly applied the law in distributing the deceased estate.
b) Whether the learned Kadhi was right in directing that the Appellant’s should build within their share of the estate property within in 30 days and/or
c) Who should bear the costs of this Appeal.
(i) Whether the learned Kadhi properly correctly applied the law in distributing the deceased estate.
18. First and foremost, it must be pointed out that the trial court had delivered its well-considered judgment on 22 nd January 2024, where, he awarded each son 22.22% of the estate, while 2 nd appellant as a daughter received 11.11%. Acknowledging that the respondent occupies the 75% of the said property, the learned Kadhi further exercised his discretion and deducted 2% share from the other 3 sons (the 1 st , 3 rd and 4 th appellant herein) and awarded the same to the respondent herein. He thus ended up controlling a further 6% of the said estate and by dint of the same, his estate share increased to 28%. No appeal was filed against this judgment, but its implementation/enforcement is the source of this appeal.
19. Having established the parties share, in the aforestated judgment, based in Islamic principles as laid out under Quran guidelines (Surah-Nisa 4:12), it was not open for the learned trial Kadhi to reopen the distribution model earlier arrived at and/or direct/order the land surveyor to carry out the sub division of the suit property amongst the four siblings strictly on their portion of 25% of the 75% already occupied by the respondent, which finding in effect awards the respondent a larger portion of the estate, beyond what he was awarded in the earlier judgement. This is a clear error, which runs contrary to the law and the earlier factual findings arrived at and must be corrected.
20. The respondent, also alleged that this ruling was based on the minutes of the family meeting presided over by the elders, which resolutions were filed in court on 16 th November 2023, and subsequently adopted as a consent before the trial court. This unfortunately is not the correct position as the said resolution was not adopted by the parties as consent before the trial court. Finally, the learned Kadhi was also not formally moved to review, set-aside and/or to vary his judgment dated 22 nd January 2024. He did so Suo moto, which is also a travesty to justice and went over board to direct the Appellants on how to deal with their share of the estate, which directive was ultra vires and void abinitio.
E. Disposition
21. I do therefore find that this Appeal has merit and allow the same. The ruling of the learned Kadhi dated 24 th December 2025, is hereby set aside in its entirety.
22. The trial court did not make specific determination to the Appellants Application dated 13 th November 2025, and the same is returned to the Kadhi’s court for hearing and determination.
23. The parties herein are siblings and thus each party will bear their own costs of this Appeal.
24. It is so ordered.
Dated, signed, and delivered through CTS at Marsabit this ...............6th...................day of August 2026.
FRANCIS RAYOLA OLEL
JUDGE
Delivered on the virtual platform, Team this ……6th………. day of August, 2026.
In the presence of : -
………………N/A………………………………………..Appellant
………………N/A………………………………………. Respondent
………………JARSO…………………………………. Court Assistant
MARSABIT HCCA NO E001 OF 20262
IN THE HIGH COURT OF KENYA AT MARSABIT
CIVIL APPEAL NO. E001 OF 2026
HUSSEIN JILLO TONA…………………..……...…….………1 st APPELLANT
DHAHABO JILLO TONA……………………………………..2 nd APPELLANT
SAID JILLO TONA……………………………………………..3 rd APPELLANT
MOHAMEDNUR JILLO TONA………………………………4 th APPELLANT
VERSUS
MOHAMUD JILLO TONA………………… ………………. RESPONDENT
( BEING AN APPEAL FROM THE RULING OF HON MUSTAFA GUYO SHUNU (PRINCIPAL KADHI) DELIVERED ON 24 th DECEMBER 2025 IN MARSABIT KADHI CASE KCSUCC No. E024 OF 2022)
ARISING BETWEEN
HUSSEIN JILLO TONA…………………..……...…….………1 st PETITIONER
DHAHABO JILLO TONA……………………………………..2 nd PETITIONER
SAID JILLO TONA……………………………………………..3 rd PETITIONER
MOHAMEDNUR JILLO TONA………………………………4 th PETITIONER
VERSUS
MOHAMUD JILLO TONA………………… …….……………. RESPONDENT
J U D G EM E N T
A. Introduction
1. This Appeal challenges the Ruling-Order issued by Hon Mustafa .G. Shunu (Principal Kadhi) in MARSABIT SUCCESSION CAUSE NO KCSUCC E024 of 2023 , dated 24 th December, 2025, where he held that the Appellants are entitled to inherit 25% of the suit property, while the respondents occupies 75% of the inherited property, and further held that the appellants do carry out construction on their inherited portion within 30 days. The OCS Marsabit police station was to ensure compliance.
2. Being dissatisfied with the said ruling, the Appellants filed their Memorandum of Appeal dated 2 nd January 2026 and raised six (6) grounds of Appeal, namely;
a. THAT the honourable Kadhi erred in law and fact in holding that the appellants inherit 25% of the inherited suit property while the respondent occupies 75% of the inherited suit property.
b. THAT the honourable Kadhi erred in law and in fact in holding that the Appellants carry out construction within thirty (30) days which is practically impossible and against their will.
c. THAT the honourable Kadhi erred in law and fact in failing to find that the suit property equally belongs to both parties as beneficiaries of the estate of their deceased father.
d. THAT the honourable Kadhi erred in law and fact in holding that a survey shall be conducted to strictly sub divide twenty-five (25%) of the suit property amongst the Appellants herein while the respondent occupies seventy-five (75%) of the said property.
e. THAT the learned Kadhi erred in law and in fact in failing to find that the appellants had presented a justifiable cause to enable the Honourbale court grant the orders sought in the Application dated 13 th November, 2025.
f. THAT the learned magistrate erred in fact and law by failing to consider all the materials placed before him and making a ruling limited to only a few issues without considering all the material placed before the court for consideration and determination
3. The appellant therefore prayed that the ruling/order of the trial court be set aside and that their execution application dated 13 th November 2023, be allowed with costs.
B. Facts of the Case
4. The parties herein are all children/beneficiaries of the late Jillo Tona (Deceased) , who died sometimes in the year 1990. The Appellants moved court in 2023 to have his estate distributed and after the parties were heard, the learned Kadhi delivered his judgment dated 22 nd January 2024, where he ascertained that the respondent occupies 75% of Plot 134 situated in old town-Marsabit, which belonged to the estate and directed him to choose the lesser of the two evils, either allow the appellants to put up structures for income generating in a similar way he did and/or in the alternative if he declines the court would distribute the estate in the following manner;
a) That each son is entitled to 22.22% summing to 88.89%, while the daughter will receive 11.11% of the deceased estate.
b) That in exercising the power of discretion, which is wide, the court deems it fit and just to deduct 2% share from the 3 Sons, summing to 6%, which extra portion is awarded to the respondent and he thus receives 28% of the deceased estate.
5. Upon delivery of the said judgment, the parties could not agree on its implementation and subsequently, the appellants moved the Kadhi’s court vide their application dated 13 th November 2025 to enforce the said judgment. Simultaneously the respondent also filed a letter dated 10 th November 2025, seeking the courts intervention to facilitate demarcation/delineation of the suit parcel in line with the decree dated 22 nd January 2022.
6. It is upon determination of the said application/letter that the Honourable Kadhi did deliver the impugned ruling dated 24 th December 2025, the subject of this Appeal.
C. The Appeal
7. The Appeal was canvassed by way of written submissions.
(i) The Appellants' Submissions .
8. The Appellants relied on their submissions dated 30 th March 2026, where they emphasized that it was not contested that they were the rightful heirs of the deceased estate and were entitled to their share as per the Islamic law. It was therefore blatantly wrong for the learned Kadhi to award the respondent 75% share of the Estate property, while leaving the remaining beneficiaries with a small portion, to share. Further, the learned Kadhi had acted beyond his powers to direct that they undertake construction within 30 days, which was impractical and against their will.
9. The Appellants thus urged the court to find that their Appeal had merit and proceed to set aside the mode of distribution as decreed by the learned Kadhi.
(ii) The Respondents' Submissions .
10. The respondent relied on his submissions dated 27 th April 2026, where he averred that this appeal was misconceived and fundamentally defective for it purports to challenge the impugned ruling dated 24 th December 2025, while the substantive determination (judgement) earlier delivered remained in force, undisturbed. An appeal could not lie against an ancillary ruling, while leaving the substantive judgment intact.
11. Secondly, the learned Kadhi had determined that the respondent had lived on the suit property for a period of over 30 years, constructed residential houses and rental units thereon, which developments had been done openly and with the knowledge of the respondents, and the trial court was right not to disturb the respondent’s occupation thereof.
12. Finally, it was also submitted that the respondents had participated in a Shura meeting (family consultations) presided over by the clan elders, and the agreed resolutions filed in court by the parties on 16 th November 2023.The appellants had not proved/demonstrated that the said resolutions was procured through fraud, coercion, or misrepresentation and thus the trial magistrate could not be faulted for upholding the same. Further, it was his contention that the appellants were also stopped by the doctrine of estoppel from challenging the same since they had participated in the said deliberations and agreed on the resolution passed. Reliance was placed in the case of Hirani Vs Kassam (1952) EACA 131, Flora N Wasike Vs Destimo Wamboko (1988) Eklr & Brooke Bond Liebig (T) Mallya EA 266 for emphasis.
13. It was emphasized that the learned Kadhi had carefully considered the evidence and delivered a balanced and equitable decision, taking into account the inheritance rights of the parties, and the respondents long standing occupation and development of the suit property.
14. He thus urged the court to dismiss the Appeal with costs to him.
D. Analysis and Determination .
15. I have considered the pleadings, evidence presented, and submissions of the parties in this appeal. I have also considered the counsel of the two assessors Kadhi’s consulted over this Appeal. This court, first and foremost, is enjoined to subject the whole proceedings to fresh scrutiny and make its own conclusions. As held in Selle & Another Vs Associated Motor Boat Co ltd & others (1968) EA 123 it was stated that;
“ I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial by the high court is by way of retrial and the principals upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusion though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally. ( Abduk Hammed Saif V Ali Mohammed Sholan (1955), 22 E.A.C.A 270,
16. Also, in the court of appeal case of Ephantus Mwangi and Another Vs Duncan Mwangi Civil Appeal No 77 of 1982 {1982 -1988}1KAR 278 the appellate court did state that;
“A member of an appellate court is not bound to accept the learned judge’s findings of fact if it appears either that (a) he has clearly failed on some point to take account of particular circumstances or probabilities material to an estimate of the evidence, or (b) if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”
17. The issues which arise for determination in this appeal are;
a) Whether the learned Kadhi properly correctly applied the law in distributing the deceased estate.
b) Whether the learned Kadhi was right in directing that the Appellant’s should build within their share of the estate property within in 30 days and/or
c) Who should bear the costs of this Appeal.
(i) Whether the learned Kadhi properly correctly applied the law in distributing the deceased estate.
18. First and foremost, it must be pointed out that the trial court had delivered its well-considered judgment on 22 nd January 2024, where, he awarded each son 22.22% of the estate, while 2 nd appellant as a daughter received 11.11%. Acknowledging that the respondent occupies the 75% of the said property, the learned Kadhi further exercised his discretion and deducted 2% share from the other 3 sons (the 1 st , 3 rd and 4 th appellant herein) and awarded the same to the respondent herein. He thus ended up controlling a further 6% of the said estate and by dint of the same, his estate share increased to 28%. No appeal was filed against this judgment, but its implementation/enforcement is the source of this appeal.
19. Having established the parties share, in the aforestated judgment, based in Islamic principles as laid out under Quran guidelines (Surah-Nisa 4:12), it was not open for the learned trial Kadhi to reopen the distribution model earlier arrived at and/or direct/order the land surveyor to carry out the sub division of the suit property amongst the four siblings strictly on their portion of 25% of the 75% already occupied by the respondent, which finding in effect awards the respondent a larger portion of the estate, beyond what he was awarded in the earlier judgement. This is a clear error, which runs contrary to the law and the earlier factual findings arrived at and must be corrected.
20. The respondent, also alleged that this ruling was based on the minutes of the family meeting presided over by the elders, which resolutions were filed in court on 16 th November 2023, and subsequently adopted as a consent before the trial court. This unfortunately is not the correct position as the said resolution was not adopted by the parties as consent before the trial court. Finally, the learned Kadhi was also not formally moved to review, set-aside and/or to vary his judgment dated 22 nd January 2024. He did so Suo moto, which is also a travesty to justice and went over board to direct the Appellants on how to deal with their share of the estate, which directive was ultra vires and void abinitio.
E. Disposition
21. I do therefore find that this Appeal has merit and allow the same. The ruling of the learned Kadhi dated 24 th December 2025, is hereby set aside in its entirety.
22. The trial court did not make specific determination to the Appellants Application dated 13 th November 2025, and the same is returned to the Kadhi’s court for hearing and determination.
23. The parties herein are siblings and thus each party will bear their own costs of this Appeal.
24. It is so ordered.
Dated, signed, and delivered through CTS at Marsabit this ...............6th...................day of August 2026.
FRANCIS RAYOLA OLEL
JUDGE
Delivered on the virtual platform, Team this ……6th………. day of August, 2026.
In the presence of : -
………………N/A………………………………………..Appellant
………………N/A………………………………………. Respondent
………………JARSO…………………………………. Court Assistant
MARSABIT HCCA NO E001 OF 20262