REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KWALE
HCFPA NO. E013 OF 2025
Formerly Mombasa Succession Cause No. 96 of 1996
(Coram: Andayi W. F., J.)
NKURIA SAID MALUMBO………………………..................................1 ST APPLICANT
MWANAKOMBO HAMADI MWASALIMU…………………………2 ND APPLICANT
VERSUS
HAMISI ALI MWAKUTENGEZA......................................................1 ST RESPONDENT
HAMADI ALI MWAKUTENGEZA………………………..…………..2 ND RESPONDENT
RASHID MWABEYU BAKAR…………………….…………………….3 RD RESPONDENT
HAMISI OMAR MWAJUMLA…………………………………….…….4 TH RESPONDENT
ATHUMAN HAMISI MWAVYOMBO………………………………..5 TH RESPONDENT
FATUMA ALI MWAKUTENGEZA……………………………………6 TH RESPONDENT
RULING
1. On 22 nd February 2024, Hamisi Ali Mwakutengeza revived this file through filing of a Summons for Revocation or Annulment of Grant dated 22 nd February 2024. The file had been last handled by the High Court in Mombasa on 10 th December 2003, when a Certificate of Confirmation of Grant for the Administration of the estate of the late Ali Salim Mwakutengeza (Deceased) was issued. The Grant had been issued earlier on 21 st April 1997 to Nkuria Said Malumbo and Mwanakombo Hamadi Mwasalimu, the two respondents against whom Hamisi Ali Mwakutengeza made the application for summons for revocation of the grant. The Summons for Revocation or Annulment of Grant dated 22 nd February 2024 by Hamisi Ali Mwakutengeza sought inter alia an order that the Grant issued to the Respondents (Nkuria Sadi Malumbo and Mwanakombo Hamadi Mwasalimu) and confirmed on 10 th December 2003 be revoked and/or annulled for the reasons of being defective and the same having been obtained fraudulently.
2. The respondents to that application, Nkuria Saidi Malumbo and Mwanakombo Hamadi Mwasalimu responded by way of a replying affidavit sworn by Nkuria Said Malumbo on 19 th April 2024.
3. However, before filing the replying affidavit, the said respondents filed their own application dated 19 th March 2024 in which they sought the following orders:
a) THAT this application be deemed the substantive response to the application dated 22 nd February 2024 filed in this suit by the 1 st respondent herein.
b) THAT this court directs the Deputy Registrar Kwale Law Courts, to place the file Succession Cause No. E229 of 2023 filed by the respondent herein in the Kadhi’s Court at Kwale before this court.
c) THAT this court be pleased to grant a temporary order of injunction against the respondents, their assigns, successors, representatives and accomplices from transferring, subdividing or dealing with the suit property parcel KWALE/TIWI/1313 , in any way until the application herein is heard and decided.
d) THAT the court be pleased to exercise its constitutional supervisory jurisdiction over subordinate courts, to determine all the pending issues in both the suit at Kwale Kadhi’s Court and this suit with finality.
e) THAT in exercise of this jurisdiction (in 4 above) this court be pleased to revoke the grant of letters of administration issued with respect to property known as KWALE TIWI 1302, 1562, 126, and 1381 that the Kadhi’s court in Kwale issued on the 30 th November 2023 as the 2 nd to 5 th respondents herein fraudulently misled the court in excluding the applicants herein as well as two other beneficiaries who are the widow and children of the late Hamadi Ali Mwakutengeza, the son of the deceased.
f) THAT this court be pleased to order that the property known as KWALE/TIWI/1313 illegally transferred to the 1 st to 4 th respondents be reverted back to the applicants’ name.
g) THAT this court in making a determination, be pleased to grant a permanent order of injunction against the Respondents, their assigns, successors, representatives and accomplices or any other person claiming in the estate of the deceased, Ali Salim Mwakutengeza, from instituting any succession proceedings in the suit property parcel KWALE/TIWI/1313 in any way.
h) THAT the costs of this application be borne by the respondents.
4. The grounds in support of that application are as set out on the face thereof and expounded in the affidavit of Nkuria Said Malumbo.
5. Hamisi Ali Mwakutengeza filed a replying affidavit to that application sworn on 22 nd April 2024.
6. The High Court at Mombasa considered the application dated 22 nd February 2024 by Hamisi Ali Mwakutengeza for revocation of the Grant issued to Nkuria Said Malumbo and Mwanakombo Hamadi Mwasalimu together with the application dated 19 th March 2024 by the applicants herein and delivered a ruling dated 5 th November 2024 which the applicants herein indicate was issued on 29 th July 2025.
7. The said applicants, Nkuria Said Malumbo and Mwanakombo Hamadi Mwasalimu have now come back to this court through the Notice of Motion dated 3 rd September 2025 seeking an order for review of the ruling dated, signed and delivered on 5 th November 2024 and issued on 29 th July 2025 in Mombasa Succession Cause No. 96 of 1996 with prayers that the court be pleased to issue a ruling on the Notice of Motion dated 19 th March 2024. The matter has since been transferred to the High Court at Kwale and is now Probate and Administration Cause No. E013 of 2025.
8. The application is brought under Sections 1A,1B, 3A and Section 80 of the Civil Procedure Act Cap 21 Laws of Kenya, Orders 45 Rule 1 and 2 of the Civil Procedure Rules 2010.
9. The grounds in support of the application are set out on the face of the application and expounded in the supporting affidavit sworn on 3 rd September 2025 by Nkuria Saidi Malumbo, the 1 st applicant.
10. They are that the court delivered its ruling on 29 th July 2025 revoking the grant issued to the applicants but failed to address the application dated 19 th March 2024. That the said application raised substantive prayers including preservation of the suit property Kwale/Tiwi/1313, referred to as the “suit property” as well as the issue of supervisory jurisdiction of this court over the Kwale Kadhi’s court proceedings which issues remain undetermined. It is the applicants’ case that the grave omission led to the unfortunate issuance of orders that cannot be executed, being that the Hamisi Ali Mwakutengeza should file a petition for grant of letters of administration intestate of the estate of Ali Salim Mwakutengeza (Deceased) within 30 days of the ruling yet there already existed a confirmed grant in the Kadhi’s court at Kwale touching on the estate, a fact which the applicants had brought to the attention of the High Court through their said application but which the High Court had failed to address in its said ruling. It is the applicants’ contention that a fresh petition for letters of administration intestate for the said estate cannot be undertaken under those circumstances, thus the present application for review.
11. The applicants aver that unless the ruling is reviewed the applicants stand to suffer substantial loss and prejudice as their proprietary rights in the suit property Kwale/Tiwi/1313 remain unprotected due to an untenable procedural directive by the High Court.
12. The application is opposed by the respondents who filed what are supposed to be Grounds of Opposition dated 20 th February 2026 and supporting (sic) affidavit sworn on 20 th February 2026 by Hamisi Ali Mwakutengeza, the 1 st respondent.
13. It is the respondents’ case that the application is incompetent, misconceived and an abuse of the court process. That the applicants have failed to satisfy the threshold for grant of a review. Further that the issues raised in the present application were conclusively determined by the court in the subject ruling, hence, dissatisfaction with the court’s ruling does not constitute a ground for review but appeal.
14. The deponent deposes that, there is no new evidence provided that was not within their knowledge as at the time of delivery of the ruling on 29 th July 2025. The reliance on the existence of a confirmed grant at the Kadhi’s court is misplaced as the existence of such proceedings does not oust the jurisdiction of the court to intervene and supervise or issue appropriate orders in the interest of justice. The respondents therefore urge the court to dismiss the application in its entirety.
15. The application was canvassed by way of written submissions. The applicants’ submissions are dated 12 th March 2026. It is the applicants’ case that the 1 st applicant is a daughter in law to the deceased herein. Her husband is Hamadi Ali Mwakutengeneza (deceased) a son to the deceased herein. The 2 nd applicant is the daughter of the 1 st applicant and the grandchild to the deceased herein. Hamadi Ali Mwakutengeneza (deceased), the 1 st applicant’s husband pre-deceased Ali Salim Mwakutengeza, the deceased herein. The 1 st applicant contends that during the adjudication of the Kwale/Tiwi scheme the deceased herein, had his name registered as the owner of the suit property holding it in trust for the 1 st applicant’s husband who was sick and away during the adjudication process.
16. The applicants submit further that, the 1 st applicant’s husband, Hamadi Ali Mwakutengeza (Deceased) was the rightful owner of the subject property even as it was registered in the deceased’s name Ali Salim Mwakutengeza (Deceased) who was his father, under an arrangement the two of then had. That the said Hamadi Ali Mwakutengeza (Deceased) predeceased his father Ali Salim Mwakutengeza (Deceased) before any changes could be made on the ownership of the subject property. That the 1 st applicant instituted Mombasa Kadhis Court Civil Suit No. 114 of 1987 against two of the deceased’s daughters Fatuma Ali and Binti Ali who were interfering with her possession and occupation of the subject land and at the end of the trial the Kadhi’s Court at Mombasa made a decision in her favor.
17. It appears from the documents available in this file that after that decision, the applicant and her children filed before the Matuga District Officer’s office that decision because there is a letter dated 27 th December 1996 from the District Officer’s Office, Matuga forwarding to the Senior Resident Magistrate, Mombasa proceedings of what is titles as Succession Case No. 14 of 1995: Nkuria Said Malumbo, Mwanakomboa Hamadi Mwasalimu, Mesalimu Hamadi Mwasalimu (minor) and Mgeni Hamadi Mwasalimu (minor) v. Hamadi Ali Msani (Deceased) and Ali Salim Mwakutengeza (Deceased). The dispute was in relation to land parcel No. Kwale/Tiwi/1313 registered in the name of Ali Salim Wakutengeza. The letter is reiterating the decision of the Kadhi’s Court at Mombasa.
18. The proceedings in this file show that on 8 th October 1996 the applicants herein Nkuria Saidi Malumbo and Mwanakombo Hamadi Mwasalimu had petitioned for a Grant of Letters of Administration for the estate of the deceased Ali Salim Mwakutengeza (Deceased) at the High Court in Mombasa. The Grant was issued on 29 th April 1997 and confirmed on 10 th December 2003. In 2005 the subject property was registered in the names of Nkuria Said Malumbo and Mwanakombo Hamadi Mwasalimu.
19. It is worth reiterating that it is that Grant that the High Court sitting in Mombasa revoked by its decision of 5 th November 2024 and issued on 29 th July 2025.
20. The applicants submit further that the respondents filed Kwale Succession Cause No. E229 of 2023 and had the suit property transferred to the 2 nd and 4 th respondents herein. Further that prior to this the respondents had filed multiple succession petitions before the Kadhis’ Courts in the years 2001, 2011 and 2023.
21. The applicants contend that the ruling issued on 29 th July 2025, revoking the Grant of Letters of Administration, Intestate which had been issued to the applicants and directing Hamisi Ali Mwakutengeza to take out a new Grant of Letters of Administration Intestate to the Estate of Ali Sali Mwakutengeza (Deceased) within 30 days disregarded other three confirmed grants that were issued by the Kadhi’s court at Mombasa and two issued by the Kadhi’s court at Kwale. That one of the grants issued at Kwale in Kadhi Succession Cause No. E229 of 2023 had already transferred the estate of the deceased including the subject property to would be beneficiaries.
22. The applicants raised two issues for determination. The first issue is whether the application is unopposed for reasons that the Grounds of Opposition and Replying affidavit are both not signed. On this aspect learned counsel relied on Order 2 Rule 16 of the Civil Procedure Rules as well as the cases of Regina Kavenya Mutuku & 3 others v United Insurance Co Ltd [2002] KEHC 1114 (KLR) , and submitted that unsigned pleadings ought to be struck out and cannot be cured by the Overriding Objective principle under the Civil Procedure Act and Rules.
23. The second issue is whether the court should review its ruling issued on 29 th July 2025 as prayed. Learned counsel submits on the law under Order 45 Rule 1 of the Civil Procedure Rules 2010. Learned counsel ubmits that the reason for review is because the court did not fully consider all the issues before making the ruling. Hence, the court is urged to allow the application.
24. The respondents in their submissions raised three issues for determination. First is whether the applicants have met the legal threshold for grant of review. Learned counsel stated the three circumstances under Order 45 Rule 1 when a review may be granted. He relied on the cases of National Bank of Kenya Limited vs Ndungu Njau [1997] Keca 389 (KLR) in which the Court of Appeal held thus with regard to review:
“On an application for review, it is particularly necessary that the application should disclose in the body of the notice of motion the ground or grounds on which the review is being sought...
A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review.”
25. Learned counsel also relied on the case of Swai v Kenya Breweries Limited [2014] KECA 883 (KLR) where the Court of Appeal said that failure by the court to apply the law correctly is a point of law that is a good ground for appeal but not a ground for an application for review. The Court of Appeal went on to state that:
“As repeatedly pointed out in various decisions of this Court, the words, “for any sufficient reason” must be viewed in the context firstly of Section 80 of the Civil Procedure Act , Cap 21, which confers an unfettered right to apply for review and secondly on the current jurisprudential thinking that the words need not be analogous with the other grounds specified in the order. In Sarder Mohamed v. Charan Singh Nand Sing and Another (1959) EA 793, the High Court correctly held that Section 80 of the Civil Procedure Act conferred an unfettered discretion in the Court to make such order as it thinks fit on review and that the omission of any qualifying words in the Section was deliberate. In Shanzu Investments Limited v. Commissioner for Lands (Civil Appeal No. 100 of 1993) this Court with respect, correctly invoked and applied its earlier decision in Wangechi Kimata & Another Vs. Charan Singh (C.A. No. 80 of 1985) (unreported) wherein this Court held that“
any other sufficient reason need not be analogous with the other grounds set out in the rule because such restriction would be a clog on the unfettered right given to the Court by Section 80 of the Civil Procedure Act ; and that the other grounds set out in the rule did not in themselves form a genus or class of things which the third general head could be said to be analogous.”
26. The respondents contended that failure by the court to consider the application dated 19 th March 2024 does not constitute an error apparent on the face of the record. This grievance relates to the merits of the decision which is subject to an appeal and not review. On this aspect counsel relied on the case of Francis Origo & another v Jacob Kumali Mungala [2005] eKLR where the Court of Appeal held that that an erroneous conclusion of law or evidence is not a ground for a review but may be a good ground for appeal.
27. On whether the failure to address every prayer constitutes an error apparent it was submitted that the court is not obligated to specifically address every argument raised as long as the issues in dispute have been determined.
28. On the proceedings before the Kadhi’s Courts, it is the respondent’s submission that the High Court retains supervisory and appellate jurisdiction over Kadhis’ courts and is empowered to intervene to ensure lawful and just administration of estates.
29. On the issue of transfer of the case to Kwale High Court learned counsel submits that the same is overtaken by events as the suit was already transferred to Kwale High Court. That submission is however not correct because the prayer was for transfer of the file in Kadhi’s Court at Kwale, Succession Cause No. E229 of 2023 under the High Court’s supervisory jurisdiction and to determine all the pending issues in the Kadhi’s court and in this court at once.
30. It is the respondents’ submissions that the applicants have failed to satisfy the statutory threshold on review.
31. I have considered the application and the submissions by learned counsels. The issues raised by the parties which require the Court’s determination are:
i. Whether the application dated 3 rd September 2025 is opposed.
ii. Whether the application has met the threshold for the grant of review orders.
32. It is the applicants’ contention that the application is unopposed as the grounds of opposition dated 20 th February 2026 are unsigned. Further, the supporting affidavit filed in response to the application sworn on 20 th February 2026 is unsigned by the deponent who is the 1 st respondent.
33. Order 2 Rule 16 of the Civil Procedure Rules 2010 , provides that:
Every pleading shall be signed by an advocate, or recognised agent (as defined by Order 9, rule 2), or by the party if he sues or defends in person.
34. It is the applicants’ submissions that the above provision is mandatory and failure to comply with it should result in striking out of the affected pleadings. The respondents did not address this issue in their submissions. I am persuaded to follow the decision of Ringera, J. (as he thenn was) in the case of Regina Kavenya Mutuku & 3 others v United Insurance Co Ltd [2002] KEHC 1114 (KLR) where the learned Judge held as follows with regard to unsigned pleadings:
“As regards the validity of the defence filed on 11.1.2001, no authorities were cited for the proposition that an unsigned pleading has no legal validity. Be that as it may, I am in agreement with the submission that an unsigned pleading cannot be valid in law. To my mind, it is the signature of the appropriate person on a pleading which authenticates the same. An unauthenticated document is not a pleading of anybody. It is a nullity.
35. I therefore find that the unsigned grounds of opposition filed by the respondent herein are a nullity and cannot be considered as opposing the application.
36. Turning to the “supporting” (sic) affidavit filed in opposition to the application, the same was not signed by Hamisi Ali Mwakutengeza the 1 st respondent herein. The question therefore is the effect of such affidavit that is not signed by a deponent.
37. This question has been answered by both the Supreme Court and the Court of Appeal. In the case of Pharmacy and Poisons Board & another; Mwiti & 21 others (Respondent) [2021] KECA 97 (KLR) the Court of Appeal stated thus:
“... it would be remise of us not to comment on, albeit obiter, to set the law straight on this and other issues that emerge from the application before us. With regard to the unsigned supporting affidavit, the unmarked and unsealed annexures, it would suffice to observe that such an affidavit is fatally defective and of no value to the applicants’ Motion.”
38. The Supreme Court in its Ruling in the case of Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli & 2 others [2018] eKLR pronounced itself as follows on the issue of signing of affidavits:
“We have no hesitation in finding that the purported Replying Affidavit filed by the 1 st Respondent is fatally defective as the same contravenes all the legal requirements for the making of an affidavit. Hence it has no legal value in the matter before us. We have checked all the eight copies of the Replying Affidavit as filed in the Court Registry and confirmed that none of the copies was signed, commissioned and dated. Consequently, as the same is defective, it is deemed that there is no Replying Affidavit on record filed by the 1 st Respondent.”
39. In view of the failure by the respondent to sign the grounds of opposition and the replying affidavit erroneously titled “supporting affidavit” which was supposed to have been sworn on 20 th February 2026 by Hamisi Ali Mwakutengeza I find that the contents therein cannot be considered by this court as appropriate responses to the application for review herein. The same are struck out.
40. All the same the court has to consider whether the application meets the requirements for review under Order 45 of the Civil Procedure Rules.
41. The applicants herein seek review of the ruling issued on 29 th July 2025 on grounds that there is an error apparent on the face of the record which is failure by the court to consider the application dated 19 th March 2024.
42. The law on review is founded under Section 80 of the Civil Procedure Act as well as order 45 Rule 1 of the Civil Procedure Rules, 2010.
43. Section 80 of the Civil Procedure Act provides that:
Any person who considers himself aggrieved—
(a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.
44. Order 45 Rule 1 of the Civil Procedure Rules 2010 provides that:
(1) Any person considering himself aggrieved—
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.
45. I have in considering the submissions by learned counsels above set out various decisions of superior courts on the subject. They explain the above provisions of the law on the jurisdiction and scope of review under section 80 of the Civil Procedure Act and Order 45 Rule 1 CPR as follows:
(a) discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or;
(b) on account of some mistake or error apparent on the face of the record,
(c) for any other sufficient reason and whatever the ground there is a requirement that the application has to be made without un reasonable delay.
46. The application herein is based on the ground of apparent error on the face of the record. An error apparent was defined in the case of George Gichana Karanja & another v Mwangi Nderitu Ngatia [2019] KEHC 5103 (KLR) which quoted at paragraph 42 the case of Nyamongo & Nyamongo v. Kogo [2001] EA 173 and pronounced itself as follows:
“An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long drawn process of reasoning or on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error on the face of the record even though another view was also possible. Mere error or wrong view is certainly no ground for a review although it may be for an appeal.”
47. Further, Sir Dinshah Fardunj Mulla in Mulla, The Code of Civil Procedure 18 th Edition at page 3665 has this to say:
“An error which is not self-evident and has to be detected by a process of reasoning can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review……error contemplated under the rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. It must be an error of inadvertence. The scope of the power of review as envisaged under 0 47, r 1, Code of Civil Procedure (India’s equivalent of our Order 45 of the Rules) is very limited and the review must be confined strictly only to the errors apparent on the face of the record. A re-appraisal of the evidence on the record for finding out the error would amount to an exercise of appellate jurisdiction, which is not permissible by the statute. …”
48. The question is whether the failure by the court to make specific determinations on the prayers made in the application dated 19 th March 2024 constitutes an error apparent on the face of the record as enunciated in the authorities cited above. Paragraph 31 of the ruling delivered on 5 th November 2024 and issued on 29 th July 2025 clearly states that the court considered inter alia the application dated 19 th March 2024 which is the subject of review of this ruling.
49. It is clear that the court was fully seized of the application and referred to it giving a chronology of the applicant’s case herein including outlining at page 9 of the subject ruling the issues set out for determination by the applicants arising out of that application. Further, the court was also fully aware of the positon advanced by the applicants herein that they had been registered as the owners of the suit property since 2005 by dint of the Grant issued on 29 th April 1997 and confirmed on 10 th December 2003.
50. The court then went ahead and revoked the said Grant. As such the applicants cannot be heard to allege that the court did not consider the application dated 19 th March 2024.
51. However, it is apparent that the court did not just order revocation of the Grant issued to the applicants on 29 th April 1997. The court went ahead to order that Hamisi Ali Mwakutengeza should file a petition for grant of letters of administration intestate for the estate of the deceased Ali Salim Mwakutengeza within 30 days of the ruling. That means the High Court at Mombasa effectively revoked the orders of the Kadhi’s Court at Kwale in Succession Cause No. E229 of 2023 - In the Matter of the Estate of Ali Salim Mwakutengeza (Deceased) and any subsequent succession causes conducted by the Kadhi’s courts subsequent to the High Court Succession Cause No. 96 of 1996. Consequently, Hamisi Ali Mwakutengeza cannot escape that order by relying on the purported orders of the Kadhi’s Court at Kwale in Succession Cause No. E229 of 2023 - In the Matter of the Estate of Ali Salim Mwakutengeza (Deceased).
52. The application for review aside, section 76(a) of the LSA gives this court the power to revoke or annul a grant on its own motion if there are grounds to do so. The section provides that a grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion that the proceedings to obtain the grant were defective in substance.
53. In the present case, even if the respondents were to contend that the alleged Grant issued and confirmed in the Kadhi’s Court at Kwale in Succession Cause No. E229 of 2023, In the Matter of the Estate of Ali Salim Mwakutengeza (Deceased) was not revoked by this court’s ruling, which I have found it was, the Kadhi’s Court decision and proceedings have been brought to the attention of this court by the proceedings herein and this court may on its own motion, in its supervisory jurisdiction under Article 165(6) of the Constitution consider the same and make a
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IN THE HIGH COURT OF KENYA AT KWALE
HCFPA NO. E013 OF 2025
Formerly Mombasa Succession Cause No. 96 of 1996
(Coram: Andayi W. F., J.)
NKURIA SAID MALUMBO………………………..................................1 ST APPLICANT
MWANAKOMBO HAMADI MWASALIMU…………………………2 ND APPLICANT
VERSUS
HAMISI ALI MWAKUTENGEZA......................................................1 ST RESPONDENT
HAMADI ALI MWAKUTENGEZA………………………..…………..2 ND RESPONDENT
RASHID MWABEYU BAKAR…………………….…………………….3 RD RESPONDENT
HAMISI OMAR MWAJUMLA…………………………………….…….4 TH RESPONDENT
ATHUMAN HAMISI MWAVYOMBO………………………………..5 TH RESPONDENT
FATUMA ALI MWAKUTENGEZA……………………………………6 TH RESPONDENT
RULING
1. On 22 nd February 2024, Hamisi Ali Mwakutengeza revived this file through filing of a Summons for Revocation or Annulment of Grant dated 22 nd February 2024. The file had been last handled by the High Court in Mombasa on 10 th December 2003, when a Certificate of Confirmation of Grant for the Administration of the estate of the late Ali Salim Mwakutengeza (Deceased) was issued. The Grant had been issued earlier on 21 st April 1997 to Nkuria Said Malumbo and Mwanakombo Hamadi Mwasalimu, the two respondents against whom Hamisi Ali Mwakutengeza made the application for summons for revocation of the grant. The Summons for Revocation or Annulment of Grant dated 22 nd February 2024 by Hamisi Ali Mwakutengeza sought inter alia an order that the Grant issued to the Respondents (Nkuria Sadi Malumbo and Mwanakombo Hamadi Mwasalimu) and confirmed on 10 th December 2003 be revoked and/or annulled for the reasons of being defective and the same having been obtained fraudulently.
2. The respondents to that application, Nkuria Saidi Malumbo and Mwanakombo Hamadi Mwasalimu responded by way of a replying affidavit sworn by Nkuria Said Malumbo on 19 th April 2024.
3. However, before filing the replying affidavit, the said respondents filed their own application dated 19 th March 2024 in which they sought the following orders:
a) THAT this application be deemed the substantive response to the application dated 22 nd February 2024 filed in this suit by the 1 st respondent herein.
b) THAT this court directs the Deputy Registrar Kwale Law Courts, to place the file Succession Cause No. E229 of 2023 filed by the respondent herein in the Kadhi’s Court at Kwale before this court.
c) THAT this court be pleased to grant a temporary order of injunction against the respondents, their assigns, successors, representatives and accomplices from transferring, subdividing or dealing with the suit property parcel KWALE/TIWI/1313 , in any way until the application herein is heard and decided.
d) THAT the court be pleased to exercise its constitutional supervisory jurisdiction over subordinate courts, to determine all the pending issues in both the suit at Kwale Kadhi’s Court and this suit with finality.
e) THAT in exercise of this jurisdiction (in 4 above) this court be pleased to revoke the grant of letters of administration issued with respect to property known as KWALE TIWI 1302, 1562, 126, and 1381 that the Kadhi’s court in Kwale issued on the 30 th November 2023 as the 2 nd to 5 th respondents herein fraudulently misled the court in excluding the applicants herein as well as two other beneficiaries who are the widow and children of the late Hamadi Ali Mwakutengeza, the son of the deceased.
f) THAT this court be pleased to order that the property known as KWALE/TIWI/1313 illegally transferred to the 1 st to 4 th respondents be reverted back to the applicants’ name.
g) THAT this court in making a determination, be pleased to grant a permanent order of injunction against the Respondents, their assigns, successors, representatives and accomplices or any other person claiming in the estate of the deceased, Ali Salim Mwakutengeza, from instituting any succession proceedings in the suit property parcel KWALE/TIWI/1313 in any way.
h) THAT the costs of this application be borne by the respondents.
4. The grounds in support of that application are as set out on the face thereof and expounded in the affidavit of Nkuria Said Malumbo.
5. Hamisi Ali Mwakutengeza filed a replying affidavit to that application sworn on 22 nd April 2024.
6. The High Court at Mombasa considered the application dated 22 nd February 2024 by Hamisi Ali Mwakutengeza for revocation of the Grant issued to Nkuria Said Malumbo and Mwanakombo Hamadi Mwasalimu together with the application dated 19 th March 2024 by the applicants herein and delivered a ruling dated 5 th November 2024 which the applicants herein indicate was issued on 29 th July 2025.
7. The said applicants, Nkuria Said Malumbo and Mwanakombo Hamadi Mwasalimu have now come back to this court through the Notice of Motion dated 3 rd September 2025 seeking an order for review of the ruling dated, signed and delivered on 5 th November 2024 and issued on 29 th July 2025 in Mombasa Succession Cause No. 96 of 1996 with prayers that the court be pleased to issue a ruling on the Notice of Motion dated 19 th March 2024. The matter has since been transferred to the High Court at Kwale and is now Probate and Administration Cause No. E013 of 2025.
8. The application is brought under Sections 1A,1B, 3A and Section 80 of the Civil Procedure Act Cap 21 Laws of Kenya, Orders 45 Rule 1 and 2 of the Civil Procedure Rules 2010.
9. The grounds in support of the application are set out on the face of the application and expounded in the supporting affidavit sworn on 3 rd September 2025 by Nkuria Saidi Malumbo, the 1 st applicant.
10. They are that the court delivered its ruling on 29 th July 2025 revoking the grant issued to the applicants but failed to address the application dated 19 th March 2024. That the said application raised substantive prayers including preservation of the suit property Kwale/Tiwi/1313, referred to as the “suit property” as well as the issue of supervisory jurisdiction of this court over the Kwale Kadhi’s court proceedings which issues remain undetermined. It is the applicants’ case that the grave omission led to the unfortunate issuance of orders that cannot be executed, being that the Hamisi Ali Mwakutengeza should file a petition for grant of letters of administration intestate of the estate of Ali Salim Mwakutengeza (Deceased) within 30 days of the ruling yet there already existed a confirmed grant in the Kadhi’s court at Kwale touching on the estate, a fact which the applicants had brought to the attention of the High Court through their said application but which the High Court had failed to address in its said ruling. It is the applicants’ contention that a fresh petition for letters of administration intestate for the said estate cannot be undertaken under those circumstances, thus the present application for review.
11. The applicants aver that unless the ruling is reviewed the applicants stand to suffer substantial loss and prejudice as their proprietary rights in the suit property Kwale/Tiwi/1313 remain unprotected due to an untenable procedural directive by the High Court.
12. The application is opposed by the respondents who filed what are supposed to be Grounds of Opposition dated 20 th February 2026 and supporting (sic) affidavit sworn on 20 th February 2026 by Hamisi Ali Mwakutengeza, the 1 st respondent.
13. It is the respondents’ case that the application is incompetent, misconceived and an abuse of the court process. That the applicants have failed to satisfy the threshold for grant of a review. Further that the issues raised in the present application were conclusively determined by the court in the subject ruling, hence, dissatisfaction with the court’s ruling does not constitute a ground for review but appeal.
14. The deponent deposes that, there is no new evidence provided that was not within their knowledge as at the time of delivery of the ruling on 29 th July 2025. The reliance on the existence of a confirmed grant at the Kadhi’s court is misplaced as the existence of such proceedings does not oust the jurisdiction of the court to intervene and supervise or issue appropriate orders in the interest of justice. The respondents therefore urge the court to dismiss the application in its entirety.
15. The application was canvassed by way of written submissions. The applicants’ submissions are dated 12 th March 2026. It is the applicants’ case that the 1 st applicant is a daughter in law to the deceased herein. Her husband is Hamadi Ali Mwakutengeneza (deceased) a son to the deceased herein. The 2 nd applicant is the daughter of the 1 st applicant and the grandchild to the deceased herein. Hamadi Ali Mwakutengeneza (deceased), the 1 st applicant’s husband pre-deceased Ali Salim Mwakutengeza, the deceased herein. The 1 st applicant contends that during the adjudication of the Kwale/Tiwi scheme the deceased herein, had his name registered as the owner of the suit property holding it in trust for the 1 st applicant’s husband who was sick and away during the adjudication process.
16. The applicants submit further that, the 1 st applicant’s husband, Hamadi Ali Mwakutengeza (Deceased) was the rightful owner of the subject property even as it was registered in the deceased’s name Ali Salim Mwakutengeza (Deceased) who was his father, under an arrangement the two of then had. That the said Hamadi Ali Mwakutengeza (Deceased) predeceased his father Ali Salim Mwakutengeza (Deceased) before any changes could be made on the ownership of the subject property. That the 1 st applicant instituted Mombasa Kadhis Court Civil Suit No. 114 of 1987 against two of the deceased’s daughters Fatuma Ali and Binti Ali who were interfering with her possession and occupation of the subject land and at the end of the trial the Kadhi’s Court at Mombasa made a decision in her favor.
17. It appears from the documents available in this file that after that decision, the applicant and her children filed before the Matuga District Officer’s office that decision because there is a letter dated 27 th December 1996 from the District Officer’s Office, Matuga forwarding to the Senior Resident Magistrate, Mombasa proceedings of what is titles as Succession Case No. 14 of 1995: Nkuria Said Malumbo, Mwanakomboa Hamadi Mwasalimu, Mesalimu Hamadi Mwasalimu (minor) and Mgeni Hamadi Mwasalimu (minor) v. Hamadi Ali Msani (Deceased) and Ali Salim Mwakutengeza (Deceased). The dispute was in relation to land parcel No. Kwale/Tiwi/1313 registered in the name of Ali Salim Wakutengeza. The letter is reiterating the decision of the Kadhi’s Court at Mombasa.
18. The proceedings in this file show that on 8 th October 1996 the applicants herein Nkuria Saidi Malumbo and Mwanakombo Hamadi Mwasalimu had petitioned for a Grant of Letters of Administration for the estate of the deceased Ali Salim Mwakutengeza (Deceased) at the High Court in Mombasa. The Grant was issued on 29 th April 1997 and confirmed on 10 th December 2003. In 2005 the subject property was registered in the names of Nkuria Said Malumbo and Mwanakombo Hamadi Mwasalimu.
19. It is worth reiterating that it is that Grant that the High Court sitting in Mombasa revoked by its decision of 5 th November 2024 and issued on 29 th July 2025.
20. The applicants submit further that the respondents filed Kwale Succession Cause No. E229 of 2023 and had the suit property transferred to the 2 nd and 4 th respondents herein. Further that prior to this the respondents had filed multiple succession petitions before the Kadhis’ Courts in the years 2001, 2011 and 2023.
21. The applicants contend that the ruling issued on 29 th July 2025, revoking the Grant of Letters of Administration, Intestate which had been issued to the applicants and directing Hamisi Ali Mwakutengeza to take out a new Grant of Letters of Administration Intestate to the Estate of Ali Sali Mwakutengeza (Deceased) within 30 days disregarded other three confirmed grants that were issued by the Kadhi’s court at Mombasa and two issued by the Kadhi’s court at Kwale. That one of the grants issued at Kwale in Kadhi Succession Cause No. E229 of 2023 had already transferred the estate of the deceased including the subject property to would be beneficiaries.
22. The applicants raised two issues for determination. The first issue is whether the application is unopposed for reasons that the Grounds of Opposition and Replying affidavit are both not signed. On this aspect learned counsel relied on Order 2 Rule 16 of the Civil Procedure Rules as well as the cases of Regina Kavenya Mutuku & 3 others v United Insurance Co Ltd [2002] KEHC 1114 (KLR) , and submitted that unsigned pleadings ought to be struck out and cannot be cured by the Overriding Objective principle under the Civil Procedure Act and Rules.
23. The second issue is whether the court should review its ruling issued on 29 th July 2025 as prayed. Learned counsel submits on the law under Order 45 Rule 1 of the Civil Procedure Rules 2010. Learned counsel ubmits that the reason for review is because the court did not fully consider all the issues before making the ruling. Hence, the court is urged to allow the application.
24. The respondents in their submissions raised three issues for determination. First is whether the applicants have met the legal threshold for grant of review. Learned counsel stated the three circumstances under Order 45 Rule 1 when a review may be granted. He relied on the cases of National Bank of Kenya Limited vs Ndungu Njau [1997] Keca 389 (KLR) in which the Court of Appeal held thus with regard to review:
“On an application for review, it is particularly necessary that the application should disclose in the body of the notice of motion the ground or grounds on which the review is being sought...
A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review.”
25. Learned counsel also relied on the case of Swai v Kenya Breweries Limited [2014] KECA 883 (KLR) where the Court of Appeal said that failure by the court to apply the law correctly is a point of law that is a good ground for appeal but not a ground for an application for review. The Court of Appeal went on to state that:
“As repeatedly pointed out in various decisions of this Court, the words, “for any sufficient reason” must be viewed in the context firstly of Section 80 of the Civil Procedure Act , Cap 21, which confers an unfettered right to apply for review and secondly on the current jurisprudential thinking that the words need not be analogous with the other grounds specified in the order. In Sarder Mohamed v. Charan Singh Nand Sing and Another (1959) EA 793, the High Court correctly held that Section 80 of the Civil Procedure Act conferred an unfettered discretion in the Court to make such order as it thinks fit on review and that the omission of any qualifying words in the Section was deliberate. In Shanzu Investments Limited v. Commissioner for Lands (Civil Appeal No. 100 of 1993) this Court with respect, correctly invoked and applied its earlier decision in Wangechi Kimata & Another Vs. Charan Singh (C.A. No. 80 of 1985) (unreported) wherein this Court held that“
any other sufficient reason need not be analogous with the other grounds set out in the rule because such restriction would be a clog on the unfettered right given to the Court by Section 80 of the Civil Procedure Act ; and that the other grounds set out in the rule did not in themselves form a genus or class of things which the third general head could be said to be analogous.”
26. The respondents contended that failure by the court to consider the application dated 19 th March 2024 does not constitute an error apparent on the face of the record. This grievance relates to the merits of the decision which is subject to an appeal and not review. On this aspect counsel relied on the case of Francis Origo & another v Jacob Kumali Mungala [2005] eKLR where the Court of Appeal held that that an erroneous conclusion of law or evidence is not a ground for a review but may be a good ground for appeal.
27. On whether the failure to address every prayer constitutes an error apparent it was submitted that the court is not obligated to specifically address every argument raised as long as the issues in dispute have been determined.
28. On the proceedings before the Kadhi’s Courts, it is the respondent’s submission that the High Court retains supervisory and appellate jurisdiction over Kadhis’ courts and is empowered to intervene to ensure lawful and just administration of estates.
29. On the issue of transfer of the case to Kwale High Court learned counsel submits that the same is overtaken by events as the suit was already transferred to Kwale High Court. That submission is however not correct because the prayer was for transfer of the file in Kadhi’s Court at Kwale, Succession Cause No. E229 of 2023 under the High Court’s supervisory jurisdiction and to determine all the pending issues in the Kadhi’s court and in this court at once.
30. It is the respondents’ submissions that the applicants have failed to satisfy the statutory threshold on review.
31. I have considered the application and the submissions by learned counsels. The issues raised by the parties which require the Court’s determination are:
i. Whether the application dated 3 rd September 2025 is opposed.
ii. Whether the application has met the threshold for the grant of review orders.
32. It is the applicants’ contention that the application is unopposed as the grounds of opposition dated 20 th February 2026 are unsigned. Further, the supporting affidavit filed in response to the application sworn on 20 th February 2026 is unsigned by the deponent who is the 1 st respondent.
33. Order 2 Rule 16 of the Civil Procedure Rules 2010 , provides that:
Every pleading shall be signed by an advocate, or recognised agent (as defined by Order 9, rule 2), or by the party if he sues or defends in person.
34. It is the applicants’ submissions that the above provision is mandatory and failure to comply with it should result in striking out of the affected pleadings. The respondents did not address this issue in their submissions. I am persuaded to follow the decision of Ringera, J. (as he thenn was) in the case of Regina Kavenya Mutuku & 3 others v United Insurance Co Ltd [2002] KEHC 1114 (KLR) where the learned Judge held as follows with regard to unsigned pleadings:
“As regards the validity of the defence filed on 11.1.2001, no authorities were cited for the proposition that an unsigned pleading has no legal validity. Be that as it may, I am in agreement with the submission that an unsigned pleading cannot be valid in law. To my mind, it is the signature of the appropriate person on a pleading which authenticates the same. An unauthenticated document is not a pleading of anybody. It is a nullity.
35. I therefore find that the unsigned grounds of opposition filed by the respondent herein are a nullity and cannot be considered as opposing the application.
36. Turning to the “supporting” (sic) affidavit filed in opposition to the application, the same was not signed by Hamisi Ali Mwakutengeza the 1 st respondent herein. The question therefore is the effect of such affidavit that is not signed by a deponent.
37. This question has been answered by both the Supreme Court and the Court of Appeal. In the case of Pharmacy and Poisons Board & another; Mwiti & 21 others (Respondent) [2021] KECA 97 (KLR) the Court of Appeal stated thus:
“... it would be remise of us not to comment on, albeit obiter, to set the law straight on this and other issues that emerge from the application before us. With regard to the unsigned supporting affidavit, the unmarked and unsealed annexures, it would suffice to observe that such an affidavit is fatally defective and of no value to the applicants’ Motion.”
38. The Supreme Court in its Ruling in the case of Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli & 2 others [2018] eKLR pronounced itself as follows on the issue of signing of affidavits:
“We have no hesitation in finding that the purported Replying Affidavit filed by the 1 st Respondent is fatally defective as the same contravenes all the legal requirements for the making of an affidavit. Hence it has no legal value in the matter before us. We have checked all the eight copies of the Replying Affidavit as filed in the Court Registry and confirmed that none of the copies was signed, commissioned and dated. Consequently, as the same is defective, it is deemed that there is no Replying Affidavit on record filed by the 1 st Respondent.”
39. In view of the failure by the respondent to sign the grounds of opposition and the replying affidavit erroneously titled “supporting affidavit” which was supposed to have been sworn on 20 th February 2026 by Hamisi Ali Mwakutengeza I find that the contents therein cannot be considered by this court as appropriate responses to the application for review herein. The same are struck out.
40. All the same the court has to consider whether the application meets the requirements for review under Order 45 of the Civil Procedure Rules.
41. The applicants herein seek review of the ruling issued on 29 th July 2025 on grounds that there is an error apparent on the face of the record which is failure by the court to consider the application dated 19 th March 2024.
42. The law on review is founded under Section 80 of the Civil Procedure Act as well as order 45 Rule 1 of the Civil Procedure Rules, 2010.
43. Section 80 of the Civil Procedure Act provides that:
Any person who considers himself aggrieved—
(a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.
44. Order 45 Rule 1 of the Civil Procedure Rules 2010 provides that:
(1) Any person considering himself aggrieved—
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.
45. I have in considering the submissions by learned counsels above set out various decisions of superior courts on the subject. They explain the above provisions of the law on the jurisdiction and scope of review under section 80 of the Civil Procedure Act and Order 45 Rule 1 CPR as follows:
(a) discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or;
(b) on account of some mistake or error apparent on the face of the record,
(c) for any other sufficient reason and whatever the ground there is a requirement that the application has to be made without un reasonable delay.
46. The application herein is based on the ground of apparent error on the face of the record. An error apparent was defined in the case of George Gichana Karanja & another v Mwangi Nderitu Ngatia [2019] KEHC 5103 (KLR) which quoted at paragraph 42 the case of Nyamongo & Nyamongo v. Kogo [2001] EA 173 and pronounced itself as follows:
“An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long drawn process of reasoning or on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error on the face of the record even though another view was also possible. Mere error or wrong view is certainly no ground for a review although it may be for an appeal.”
47. Further, Sir Dinshah Fardunj Mulla in Mulla, The Code of Civil Procedure 18 th Edition at page 3665 has this to say:
“An error which is not self-evident and has to be detected by a process of reasoning can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review……error contemplated under the rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. It must be an error of inadvertence. The scope of the power of review as envisaged under 0 47, r 1, Code of Civil Procedure (India’s equivalent of our Order 45 of the Rules) is very limited and the review must be confined strictly only to the errors apparent on the face of the record. A re-appraisal of the evidence on the record for finding out the error would amount to an exercise of appellate jurisdiction, which is not permissible by the statute. …”
48. The question is whether the failure by the court to make specific determinations on the prayers made in the application dated 19 th March 2024 constitutes an error apparent on the face of the record as enunciated in the authorities cited above. Paragraph 31 of the ruling delivered on 5 th November 2024 and issued on 29 th July 2025 clearly states that the court considered inter alia the application dated 19 th March 2024 which is the subject of review of this ruling.
49. It is clear that the court was fully seized of the application and referred to it giving a chronology of the applicant’s case herein including outlining at page 9 of the subject ruling the issues set out for determination by the applicants arising out of that application. Further, the court was also fully aware of the positon advanced by the applicants herein that they had been registered as the owners of the suit property since 2005 by dint of the Grant issued on 29 th April 1997 and confirmed on 10 th December 2003.
50. The court then went ahead and revoked the said Grant. As such the applicants cannot be heard to allege that the court did not consider the application dated 19 th March 2024.
51. However, it is apparent that the court did not just order revocation of the Grant issued to the applicants on 29 th April 1997. The court went ahead to order that Hamisi Ali Mwakutengeza should file a petition for grant of letters of administration intestate for the estate of the deceased Ali Salim Mwakutengeza within 30 days of the ruling. That means the High Court at Mombasa effectively revoked the orders of the Kadhi’s Court at Kwale in Succession Cause No. E229 of 2023 - In the Matter of the Estate of Ali Salim Mwakutengeza (Deceased) and any subsequent succession causes conducted by the Kadhi’s courts subsequent to the High Court Succession Cause No. 96 of 1996. Consequently, Hamisi Ali Mwakutengeza cannot escape that order by relying on the purported orders of the Kadhi’s Court at Kwale in Succession Cause No. E229 of 2023 - In the Matter of the Estate of Ali Salim Mwakutengeza (Deceased).
52. The application for review aside, section 76(a) of the LSA gives this court the power to revoke or annul a grant on its own motion if there are grounds to do so. The section provides that a grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion that the proceedings to obtain the grant were defective in substance.
53. In the present case, even if the respondents were to contend that the alleged Grant issued and confirmed in the Kadhi’s Court at Kwale in Succession Cause No. E229 of 2023, In the Matter of the Estate of Ali Salim Mwakutengeza (Deceased) was not revoked by this court’s ruling, which I have found it was, the Kadhi’s Court decision and proceedings have been brought to the attention of this court by the proceedings herein and this court may on its own motion, in its supervisory jurisdiction under Article 165(6) of the Constitution consider the same and make a
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