1. The petitioner herein petitioned this court for grant of letters of administration intestate vide petition dated 22nd July 2021 and filed on 6th August 2021.
2. He then filed Chamber Summons application dated 9th September 2021 and filed on the same day seeking the following orders:-
(a) spent
(b) That pending the inter parties hearing of this motion, interim conservatory orders do issue ex parte in the first instance in the following terms:-
i. AN ORDER do issue directing that all rental and/or other proceeds on respect of the incontrovertible assets of the deceased’s estate, viz:
a) Premises on Plot No.22/28A/MN, Chaani, Mombasa;
b) Premises on Parcel Reference LR No. MAINLAND NORTH/SECTION VI/211 Magongo, Mombasa;
c) Premises on Parcel Reference LR No. MAINLAND NORTH/SECTION VI/2394 Changamwe, Mombasa
d) Premises on Parcel Reference LR No. MAINLAND NORTH/SECTION 1/8455 Nyali, Mombasa
be collected by the court bailiff and deposited in court forthwith.
ii. AN ORDER do issue RESTRAINING the respondents, whether by themselves, their agents/servants /employees/assigns from interfering with the use of and rental collections from the entirety of the suit properties parcels reference:
i. 22/28A/MN, Chaani;
ii. NORTH/SECTION VI/211 Magongo.
iii. NORTH/SECTION VI/2394 Changamwe;
iv. NORTH/SECTION 1/8455 Nyali,
iii. an order do issue restraining the respondents whether by themselves, their agents /servants /employees/assigns from engaging in any and all acts and/or omissions amounting to and/or capable of construction to amount to harassment and/or intimidation and/or threats to the security and general wellbeing of the petitioner /applicant in relation with the use of and rental collections from the suit properties parcel reference.
a. 22/28A/MN, Chaani;
b. NORTH/SECTION VI/211 Magongo.
c. NORTH/SECTION VI/2394 Changamwe;
d. NORTH/SECTION 1/8455 Nyali,
and/or generally.
(c) that the orders subject of prayer above be served upon;
a. The Court Bailiff, Mombasa Law Courts;
b. The Land Registrar, Mombasa;
c. The OCS, Changamwe Police Station, Mombasa;
d. The OCS, Nyali Police Station, Mombasa,
for purposes of ensuring compliance, supervising the execution of the order, providing security, and ensure no public disturbance ensues, whilst maintaining law and order throughout and after the execution of the order;
(d) That the orders subject of prayers /items no.2 and 3 above do persist until the hearing and determination of this application.
(e) that summons requiring attendance do issue to:
(a) Mohamed Sheriff Ahmed;
(b) Ali Sheriff Ahmed
(c) Ali Ahmed Swaleh;
(d) Fahim Ahmed Swaleh
(e) Mariam Ahmed Swaleh
(f) Thureya Mohamed Mahdi and
(g) Nura Sheriff Ahmed
to attend court on a date to be determined by court to show cause why they should not be punished for intermeddling with the assets of the estate of Sheriff Ahmed Sheriff(deceased).
(f) that:
(a) Mohamed Sheriff Ahmed;
(b) Ali Sheriff Ahmed
(c) Ali Ahmed Swaleh;
(d) Fahim Ahmed Swaleh
(e) Mariam Ahmed Swaleh
(f) Thureya Mohamed Mahdi and
(g) Nura Sheriff Ahmed
be cited for wilful and/or other intermeddling with the assets of the estate of Sheriff Ahmed Sheriff (deceased)
(g) that the honourable court do find, hold and declare that:
a) Mohamed Sheriff Ahmed;
b) Ali Sheriff Ahmed
c) Ali Ahmed Swaleh;
d) Fahim Ahmed Swaleh
e) Mariam Ahmed Swaleh
f) Thureya Mohamed Mahdi and
g) Nura Sheriff Ahmed
performed Acts and/or omissions amounting to intermeddling with the assets of the estate of Sheriff Ahmed Sheriff(deceased).
(h) that:
(a) Mohamed Sheriff Ahmed;
(b) Ali Sheriff Ahmed
(c) Ali Ahmed Swaleh;
(d) Fahim Ahmed Swaleh
(e) Mariam Ahmed Swaleh
(f) Thureya Mohamed Mahdi and
(g) Nura Sheriff Ahmed
be sentenced to imprisonment /committed to civil jail for the term of six (6) months and/or a penalty be imposed upon them, jointly and severally for wilful and/or deliberate and/or other intermeddling with the assets of the Sheriff Ahmed Sheriff(deceased).
(i) That the honourable court be pleased to issue any other or further orders as may be just and expedient in the circumstances towards protecting the dignity and honour of this court.
(j) that costs of this motion and related proceedings be borne by:
a) Mohamed Sheriff Ahmed;
b) Ali Sheriff Ahmed
c) Ali Ahmed Swaleh;
d) Fahim Ahmed Swaleh
e) Mariam Ahmed Swaleh
f) Thureya Mohamed Mahdi and
g) Nura Sheriff Ahmed
jointly and severally.
3. This honourable in its orders of 9th September 2021 allowed Prayer No.2.
4. In response to the application the 1st,2nd ,3rd and 4th respondent filed grounds of opposition together with a notice of preliminary objection both dated 18th October 2021 and filed on 27th October 2021. The 6th and 7th respondent filed Notice of Admission of facts and notice of clarification of issues dated 22nd September 2021 and filed 23rd September 2021.
5. What’s is before this court for determination is the notice of preliminary objection dated 18th October, 2021 and filed on 27th October 2021. The same is based on the following grounds:-
a) That the Chamber Summons dated 9th September 2021 and Petition for Letters Administration intestate dated 22nd day of July 2021 has ousted the jurisdiction of the Kadhis Court under Article 170(5) of the Constitution of Kenya 2010 which clothes the Kadhi Court with jurisdiction of the 1st instance when all parties profess the Muslim religion;
b) That the orders so granted by this honourable court on the 9th September 2021 is a nullity because the petitioner did not cite the respondents to refuse or agree to sign the petition for the grant of letters of administration intestate in blatant breach of Rule 22(1) of Probate & Administrative Rules;
c) that the suit/petition is a nullity for contravening the provisions of Section 51(1) (g) of the Succession Act CAP 160 Laws of Kenya and Section 66(a)and (b) thereof;
d) That the Chamber Summons and the Petition herein is a non-starter and fatally defective because the petitioner has failed to prove that he was a beneficiary of the deceased or that the estate of the deceased is thus indebted to him and therefore has made efforts to cite the executors who have arrogated their rights thus giving him a right to seek a grant in regards to the deceased’s estate;
e) that the petitioner herein has failed to adhere and attach the statutory requirements for filing of succession to wit: original death certificate by a duly certified copy, an introductory letter from the area chief disclosing full material facts, e.g names of all survivors, their relationship with the deceased and their respective ages, documentary evidence of deceased’s properties to be collected, preserved and protected e.g certified copies of land titles, official searches, duly certified copies of identity cards of the survivors /beneficiaries, Forms 38 duly executed by all adult beneficiaries;
f) that the suit is an abuse of court process as it violates the principal of res subjudice to wit most of the listed properties are subject of adjudication before this honourable court being HCC (Family Division) Miscellaneous Application No.32 of 2013 and lower court Civil Suit No. CMCC No.3 of 2021 -Mohamed Shariff Ahmed (1st Respondent)-vs-Ali Ahmed (2nd Respondent). HCC Family Division Miscellaneous Application No.32 of 2013 and in the matter of Kadhi’s Court Succession Cause No.218 of 2012 where the deceased was the 1st applicant.
g) that the petition should be dismissed with costs to the applicant/respondents.
6. The court directed that the preliminary objection be disposed off by way of written submissions.
7. The 1st,2nd 3rd,4th and 7th respondents through their advocates Derrick Odhiambo advocates filed their written submissions dated 2nd May 2023 and submitted three issues namely;
(a) whether this honourable court has the jurisdiction to determine this suit.
(b) whether the petitioner has proven that he is a beneficiary of the deceased’s estate.
(c) whether the petitioner’s chamber summons application dated 9th September 2021, offends the principle of res sub judice.
8. On the 1st issue counsel submitted that the subject matter of this suit falls under the jurisdiction of the Kadhi’s Court as established in Article 169(1) and 170(5) of the Constitution. That the Kadhi’s Court is the court of the 1st instance in the matter that deal with divorce and succession between parties that profess the Muslim faith. That the dispute herein is in respect of parties that profess the Muslim religion and thus the suit ought to have been instituted in the Kadhi’s Court by virtue of Article 170(5) of the Constitution of Kenya, 2010. That the Kadhis Court being a court of first instance strips this court of the jurisdiction to determine this dispute. To support his position counsel relied on Nairobi Civil Appeal No.244 of 2010: Phoenix of E.A Assurance Company Limited versus S.M Thiga T/A Newspaper Service, where the court cited the case of The Owners of the Motor Vessel “Lillian S” versus Caltex Oil (Kenya) Ltd [1989] eKLR on jurisdiction.
9. On the second issue counsel submitted that the petitioner did not produce any evidence to prove that he is a beneficiary of the deceased’s estate, thus cannot be accorded the benefit of the petition and chamber summons application that was filed in court. Counsel relied on Section 29 of the Law of Succession Act on the meaning of a dependant and the case of Machakos High Court Succ No.1 of 2017; RNM versus RMN which cited with approval the holding in the case of Beatrice Ciamutua Rugamba versus Fredrick Nkari Mutegi & Others, Chuka Succ. Cause No.12 of 2016 where the court held that a dependant must prove that he/she was being maintained by the deceased immediately prior to his demise.
10. Counsel further submitted that if the petitioner has any interest over the estate then he does so as an interested party and he ought to cite the beneficiaries of the estate as provided in Section 22(1) of the Probate and Administrative Rules.
11. On the third issue counsel submitted that the doctrine of res sub judice prevents a court from proceeding with the trial of any suit in which the matter in issue is directly and substantially the same with the previously instituted suit between the same parties pending before the same or another court with jurisdiction to determine it.
12. In conclusion counsel urged the court to dismiss chamber summons application dated 18th October 2021 with costs.
13. The Petitioner through his advocates Ngonze & Ngonze Advocates filed his written submissions dated 23rd June 2023. Counsel submitted the ingredients of a preliminary objection were set out in the case of Mukisa Biscuit Manufacturing Co. Ltd -v- West End Distributors Ltd (1969) EA 696 where the court stated that a preliminary objection raises a point of law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. That the preliminary objection ought to be summarily struck out with costs.
14. On jurisdiction counsel submitted that there is no provision of law that renders it mandatory for the petitioner to submit to the jurisdiction of Kadhi Court. Counsel relied on several authorities which include Genevieve Bertrand versus Mohamed Athman Maawiya & Another [2014] eKLR and RB & RGO versus HSB & ASB ]2014]eKLR and submitted that nothing precludes this honourable court from determining the administration of the estate of a deceased Muslim where such proceedings are presented before it.That no party can be condemned to submit to the Kadhis Court unwillingly.
15. In conclusion counsel urged the court to strike out and dismiss the preliminary objection with costs.
16. I have considered the preliminary objection, the response therein and the rival submissions by counsel for both parties. The issues that call for my determination are the following:-
(a) Whether the Kadhi’s Court jurisdiction supersedes that of this court in this matter;
(b) Whether the petitioner has breached Rule 22(1) of Probate & Administrative Rules, Section 51(1)(g) and Section 66(a) and (b);
(c) Whether this suit is res subjudice.
17. On the meaning of a preliminary objection the court in the case of Rebecca Chumo versus Christina Cheptoo Chumo [2021] eKLR cited the case of Mukisa Biscuits Manufacturing Ltd versus West End Distributors (1969) EA 696 where their Lordships observed thus:-
“----a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by a contract giving rise to the suit to refer the dispute to arbitration”.
In the same case Sir Charles Newbold, P. stated:-
“a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop”.
18. On jurisdiction Nyarangi,J in the locus classicus case of The Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd (supra) stated:-
“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
19. Further the Supreme Court in the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR stated:-
“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings.”
20. The jurisdiction of the Kadhi’s Court is provided for in Article 170 (5) of the Constitution of Kenya 2010 which provides;
“The jurisdiction of a Kadhis’ court shall be limited to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion and submit to the jurisdiction of the Kadhi’s courts.”
And also, by Section 5 of the Kadhi’s Courts Act which provides;
“A Kadhi’s court shall have and exercise the following jurisdiction, namely the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion; but nothing in this section shall limit the jurisdiction of the High Court or of any subordinate court in any proceeding which comes before it.”
21. Further the court in the case of RB & RGO versus HSB & ASB [2014] eKLR stated:-
“It is clear from the textual provision of Article 170(5) of the Constitution that the jurisdiction of the Kadhi’s Court is limited to questions relating to personal status, marriage, divorce or inheritance, in proceedings where all the parties profess Muslim religion and submit to the jurisdiction of the Court. It appears to me that the primary purpose of the Article 170 is to preserve a forum for the resolution of disputes as to personal law matters of Muslims as existed before the Constitution of Kenya 2010 under section 69 of the former Constitution. The new Constitution, however, recognised and gave effect to the right of Muslims to choose to utilize the regular system of adjudication through the High Court.
This right of choice is consistent with the constitutional values of liberty of the person embodied in the principles of “human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised” under Article 10 (2) (b) of the Constitution. To compel all Muslims to subject themselves to the jurisdiction of the Kadhi’s Court would be contrary to all notions of choice which is the basis of rights and freedoms in the Bill of Rights. Hence the provision for the Muslims to submit, rather than compulsion to subject themselves, to the jurisdiction of the Kadhi’s Court.”
22. This honourable court being a Probate and Administration Court derives its jurisdiction from Section 47 of the Law of Succession Act which provides that:-
“The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient:
Provided that the High Court may for the purpose of this section be represented by Resident Magistrates appointed by the Chief Justice.”
23. The court in the case of In re Estate of Julius Ndubi Javan (Deceased) [2018] eKLR in discussing the jurisdiction and or duty of the Probate Court stated:-
“The primary duty of the Probate Court is to distribute the estate of the deceased to the rightful beneficiaries.”
24. The petitioner has submitted himself to the jurisdiction of this court and nothing bars this court as provided for in section 5 of the Kadhis Court Act from hearing and determining this matter as the jurisdiction of the Kadhi’s Court only applies where one has submitted to it. Accordingly, it is my finding that this court has jurisdiction to determine this matter.
25. On whether the petitioner has breached rule 22(1) of Probate and Administration Rules; and section 51 of the Law of Succession Act; the said provisions provide:-
Rule 22(1),
(1) A citation may be issued at the instance of any person who would himself be entitled to a grant in the event of the person cited renouncing his right thereto.
Section 51 of the Law of Succession Act
(1) Every application for a grant of representation shall be made in such form as may be prescribed, signed by the applicant and witnessed in the prescribed manner.
(2) Every application shall include information as to—
(a) the full names of the deceased;
(b) the date and place of his death;
I his last known place of residence;
(d) the relationship (if any) of the applicant to the deceased;
(e) whether or not the deceased left a valid will;
(f) the present addresses of any executors appointed by any such valid will;
(g) in cases of total or partial intestacy, the names and addresses of all surviving spouses, children, parents, brothers and sisters of the deceased, and of the children of any child of his or hers then deceased;
(h) a full inventory of all the assets and liabilities of the deceased; and
(i) such other matters as may be prescribed
26. In this case the applicants have argued that the petitioner has not substantiated that he is beneficiary of the deceased’s estate neither did he cite the deceased’s estate.
27. It’s my view that the issue of whether the petitioner is a beneficiary is not a pure point of law as facts must be ascertained.
28. On whether this matter is subjudice the court in the case of Cyrus Mucebiu Irungu versus Martha Wanjiru Irungu & another [2022] eKLR stated:-
“I agree with the submission by counsel for the plaintiff that the issue of sub-judice does require the ascertaining of facts or probing of evidence in the two earlier suits mentioned by the 1st defendant which this honourable court is not privy to. It therefore follows that the issue of sub-judice is not a pure point of law capable of being considered as a preliminary objection properly raised and does not meet the litmus test of what in law amounts to a preliminary objection.”
29. Accordingly, it is my finding that the same does not meet the threshold of a preliminary objection.
30. The upshot of the above is that the notice of preliminary objection lacks merit and its hereby dismissed. This being a family matter each party will bear own costs.
Orders accordingly.
Dated, signed and delivered at Nairobi this 1st day of September 2023 via Microsoft TEAMS
GREGORY MUTAI
JUDGE
In the presence of:-
No appearance for the Petitioner;
No appearance for the 1st to 5th Respondents;
No appearance for the 6th and 7th Respondents; and
Mr. Arthur Ranyondo – Court Assistant.
2. He then filed Chamber Summons application dated 9th September 2021 and filed on the same day seeking the following orders:-
(a) spent
(b) That pending the inter parties hearing of this motion, interim conservatory orders do issue ex parte in the first instance in the following terms:-
i. AN ORDER do issue directing that all rental and/or other proceeds on respect of the incontrovertible assets of the deceased’s estate, viz:
a) Premises on Plot No.22/28A/MN, Chaani, Mombasa;
b) Premises on Parcel Reference LR No. MAINLAND NORTH/SECTION VI/211 Magongo, Mombasa;
c) Premises on Parcel Reference LR No. MAINLAND NORTH/SECTION VI/2394 Changamwe, Mombasa
d) Premises on Parcel Reference LR No. MAINLAND NORTH/SECTION 1/8455 Nyali, Mombasa
be collected by the court bailiff and deposited in court forthwith.
ii. AN ORDER do issue RESTRAINING the respondents, whether by themselves, their agents/servants /employees/assigns from interfering with the use of and rental collections from the entirety of the suit properties parcels reference:
i. 22/28A/MN, Chaani;
ii. NORTH/SECTION VI/211 Magongo.
iii. NORTH/SECTION VI/2394 Changamwe;
iv. NORTH/SECTION 1/8455 Nyali,
iii. an order do issue restraining the respondents whether by themselves, their agents /servants /employees/assigns from engaging in any and all acts and/or omissions amounting to and/or capable of construction to amount to harassment and/or intimidation and/or threats to the security and general wellbeing of the petitioner /applicant in relation with the use of and rental collections from the suit properties parcel reference.
a. 22/28A/MN, Chaani;
b. NORTH/SECTION VI/211 Magongo.
c. NORTH/SECTION VI/2394 Changamwe;
d. NORTH/SECTION 1/8455 Nyali,
and/or generally.
(c) that the orders subject of prayer above be served upon;
a. The Court Bailiff, Mombasa Law Courts;
b. The Land Registrar, Mombasa;
c. The OCS, Changamwe Police Station, Mombasa;
d. The OCS, Nyali Police Station, Mombasa,
for purposes of ensuring compliance, supervising the execution of the order, providing security, and ensure no public disturbance ensues, whilst maintaining law and order throughout and after the execution of the order;
(d) That the orders subject of prayers /items no.2 and 3 above do persist until the hearing and determination of this application.
(e) that summons requiring attendance do issue to:
(a) Mohamed Sheriff Ahmed;
(b) Ali Sheriff Ahmed
(c) Ali Ahmed Swaleh;
(d) Fahim Ahmed Swaleh
(e) Mariam Ahmed Swaleh
(f) Thureya Mohamed Mahdi and
(g) Nura Sheriff Ahmed
to attend court on a date to be determined by court to show cause why they should not be punished for intermeddling with the assets of the estate of Sheriff Ahmed Sheriff(deceased).
(f) that:
(a) Mohamed Sheriff Ahmed;
(b) Ali Sheriff Ahmed
(c) Ali Ahmed Swaleh;
(d) Fahim Ahmed Swaleh
(e) Mariam Ahmed Swaleh
(f) Thureya Mohamed Mahdi and
(g) Nura Sheriff Ahmed
be cited for wilful and/or other intermeddling with the assets of the estate of Sheriff Ahmed Sheriff (deceased)
(g) that the honourable court do find, hold and declare that:
a) Mohamed Sheriff Ahmed;
b) Ali Sheriff Ahmed
c) Ali Ahmed Swaleh;
d) Fahim Ahmed Swaleh
e) Mariam Ahmed Swaleh
f) Thureya Mohamed Mahdi and
g) Nura Sheriff Ahmed
performed Acts and/or omissions amounting to intermeddling with the assets of the estate of Sheriff Ahmed Sheriff(deceased).
(h) that:
(a) Mohamed Sheriff Ahmed;
(b) Ali Sheriff Ahmed
(c) Ali Ahmed Swaleh;
(d) Fahim Ahmed Swaleh
(e) Mariam Ahmed Swaleh
(f) Thureya Mohamed Mahdi and
(g) Nura Sheriff Ahmed
be sentenced to imprisonment /committed to civil jail for the term of six (6) months and/or a penalty be imposed upon them, jointly and severally for wilful and/or deliberate and/or other intermeddling with the assets of the Sheriff Ahmed Sheriff(deceased).
(i) That the honourable court be pleased to issue any other or further orders as may be just and expedient in the circumstances towards protecting the dignity and honour of this court.
(j) that costs of this motion and related proceedings be borne by:
a) Mohamed Sheriff Ahmed;
b) Ali Sheriff Ahmed
c) Ali Ahmed Swaleh;
d) Fahim Ahmed Swaleh
e) Mariam Ahmed Swaleh
f) Thureya Mohamed Mahdi and
g) Nura Sheriff Ahmed
jointly and severally.
3. This honourable in its orders of 9th September 2021 allowed Prayer No.2.
4. In response to the application the 1st,2nd ,3rd and 4th respondent filed grounds of opposition together with a notice of preliminary objection both dated 18th October 2021 and filed on 27th October 2021. The 6th and 7th respondent filed Notice of Admission of facts and notice of clarification of issues dated 22nd September 2021 and filed 23rd September 2021.
5. What’s is before this court for determination is the notice of preliminary objection dated 18th October, 2021 and filed on 27th October 2021. The same is based on the following grounds:-
a) That the Chamber Summons dated 9th September 2021 and Petition for Letters Administration intestate dated 22nd day of July 2021 has ousted the jurisdiction of the Kadhis Court under Article 170(5) of the Constitution of Kenya 2010 which clothes the Kadhi Court with jurisdiction of the 1st instance when all parties profess the Muslim religion;
b) That the orders so granted by this honourable court on the 9th September 2021 is a nullity because the petitioner did not cite the respondents to refuse or agree to sign the petition for the grant of letters of administration intestate in blatant breach of Rule 22(1) of Probate & Administrative Rules;
c) that the suit/petition is a nullity for contravening the provisions of Section 51(1) (g) of the Succession Act CAP 160 Laws of Kenya and Section 66(a)and (b) thereof;
d) That the Chamber Summons and the Petition herein is a non-starter and fatally defective because the petitioner has failed to prove that he was a beneficiary of the deceased or that the estate of the deceased is thus indebted to him and therefore has made efforts to cite the executors who have arrogated their rights thus giving him a right to seek a grant in regards to the deceased’s estate;
e) that the petitioner herein has failed to adhere and attach the statutory requirements for filing of succession to wit: original death certificate by a duly certified copy, an introductory letter from the area chief disclosing full material facts, e.g names of all survivors, their relationship with the deceased and their respective ages, documentary evidence of deceased’s properties to be collected, preserved and protected e.g certified copies of land titles, official searches, duly certified copies of identity cards of the survivors /beneficiaries, Forms 38 duly executed by all adult beneficiaries;
f) that the suit is an abuse of court process as it violates the principal of res subjudice to wit most of the listed properties are subject of adjudication before this honourable court being HCC (Family Division) Miscellaneous Application No.32 of 2013 and lower court Civil Suit No. CMCC No.3 of 2021 -Mohamed Shariff Ahmed (1st Respondent)-vs-Ali Ahmed (2nd Respondent). HCC Family Division Miscellaneous Application No.32 of 2013 and in the matter of Kadhi’s Court Succession Cause No.218 of 2012 where the deceased was the 1st applicant.
g) that the petition should be dismissed with costs to the applicant/respondents.
6. The court directed that the preliminary objection be disposed off by way of written submissions.
7. The 1st,2nd 3rd,4th and 7th respondents through their advocates Derrick Odhiambo advocates filed their written submissions dated 2nd May 2023 and submitted three issues namely;
(a) whether this honourable court has the jurisdiction to determine this suit.
(b) whether the petitioner has proven that he is a beneficiary of the deceased’s estate.
(c) whether the petitioner’s chamber summons application dated 9th September 2021, offends the principle of res sub judice.
8. On the 1st issue counsel submitted that the subject matter of this suit falls under the jurisdiction of the Kadhi’s Court as established in Article 169(1) and 170(5) of the Constitution. That the Kadhi’s Court is the court of the 1st instance in the matter that deal with divorce and succession between parties that profess the Muslim faith. That the dispute herein is in respect of parties that profess the Muslim religion and thus the suit ought to have been instituted in the Kadhi’s Court by virtue of Article 170(5) of the Constitution of Kenya, 2010. That the Kadhis Court being a court of first instance strips this court of the jurisdiction to determine this dispute. To support his position counsel relied on Nairobi Civil Appeal No.244 of 2010: Phoenix of E.A Assurance Company Limited versus S.M Thiga T/A Newspaper Service, where the court cited the case of The Owners of the Motor Vessel “Lillian S” versus Caltex Oil (Kenya) Ltd [1989] eKLR on jurisdiction.
9. On the second issue counsel submitted that the petitioner did not produce any evidence to prove that he is a beneficiary of the deceased’s estate, thus cannot be accorded the benefit of the petition and chamber summons application that was filed in court. Counsel relied on Section 29 of the Law of Succession Act on the meaning of a dependant and the case of Machakos High Court Succ No.1 of 2017; RNM versus RMN which cited with approval the holding in the case of Beatrice Ciamutua Rugamba versus Fredrick Nkari Mutegi & Others, Chuka Succ. Cause No.12 of 2016 where the court held that a dependant must prove that he/she was being maintained by the deceased immediately prior to his demise.
10. Counsel further submitted that if the petitioner has any interest over the estate then he does so as an interested party and he ought to cite the beneficiaries of the estate as provided in Section 22(1) of the Probate and Administrative Rules.
11. On the third issue counsel submitted that the doctrine of res sub judice prevents a court from proceeding with the trial of any suit in which the matter in issue is directly and substantially the same with the previously instituted suit between the same parties pending before the same or another court with jurisdiction to determine it.
12. In conclusion counsel urged the court to dismiss chamber summons application dated 18th October 2021 with costs.
13. The Petitioner through his advocates Ngonze & Ngonze Advocates filed his written submissions dated 23rd June 2023. Counsel submitted the ingredients of a preliminary objection were set out in the case of Mukisa Biscuit Manufacturing Co. Ltd -v- West End Distributors Ltd (1969) EA 696 where the court stated that a preliminary objection raises a point of law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. That the preliminary objection ought to be summarily struck out with costs.
14. On jurisdiction counsel submitted that there is no provision of law that renders it mandatory for the petitioner to submit to the jurisdiction of Kadhi Court. Counsel relied on several authorities which include Genevieve Bertrand versus Mohamed Athman Maawiya & Another [2014] eKLR and RB & RGO versus HSB & ASB ]2014]eKLR and submitted that nothing precludes this honourable court from determining the administration of the estate of a deceased Muslim where such proceedings are presented before it.That no party can be condemned to submit to the Kadhis Court unwillingly.
15. In conclusion counsel urged the court to strike out and dismiss the preliminary objection with costs.
16. I have considered the preliminary objection, the response therein and the rival submissions by counsel for both parties. The issues that call for my determination are the following:-
(a) Whether the Kadhi’s Court jurisdiction supersedes that of this court in this matter;
(b) Whether the petitioner has breached Rule 22(1) of Probate & Administrative Rules, Section 51(1)(g) and Section 66(a) and (b);
(c) Whether this suit is res subjudice.
17. On the meaning of a preliminary objection the court in the case of Rebecca Chumo versus Christina Cheptoo Chumo [2021] eKLR cited the case of Mukisa Biscuits Manufacturing Ltd versus West End Distributors (1969) EA 696 where their Lordships observed thus:-
“----a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by a contract giving rise to the suit to refer the dispute to arbitration”.
In the same case Sir Charles Newbold, P. stated:-
“a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop”.
18. On jurisdiction Nyarangi,J in the locus classicus case of The Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd (supra) stated:-
“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”
19. Further the Supreme Court in the case of Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR stated:-
“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings.”
20. The jurisdiction of the Kadhi’s Court is provided for in Article 170 (5) of the Constitution of Kenya 2010 which provides;
“The jurisdiction of a Kadhis’ court shall be limited to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion and submit to the jurisdiction of the Kadhi’s courts.”
And also, by Section 5 of the Kadhi’s Courts Act which provides;
“A Kadhi’s court shall have and exercise the following jurisdiction, namely the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion; but nothing in this section shall limit the jurisdiction of the High Court or of any subordinate court in any proceeding which comes before it.”
21. Further the court in the case of RB & RGO versus HSB & ASB [2014] eKLR stated:-
“It is clear from the textual provision of Article 170(5) of the Constitution that the jurisdiction of the Kadhi’s Court is limited to questions relating to personal status, marriage, divorce or inheritance, in proceedings where all the parties profess Muslim religion and submit to the jurisdiction of the Court. It appears to me that the primary purpose of the Article 170 is to preserve a forum for the resolution of disputes as to personal law matters of Muslims as existed before the Constitution of Kenya 2010 under section 69 of the former Constitution. The new Constitution, however, recognised and gave effect to the right of Muslims to choose to utilize the regular system of adjudication through the High Court.
This right of choice is consistent with the constitutional values of liberty of the person embodied in the principles of “human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised” under Article 10 (2) (b) of the Constitution. To compel all Muslims to subject themselves to the jurisdiction of the Kadhi’s Court would be contrary to all notions of choice which is the basis of rights and freedoms in the Bill of Rights. Hence the provision for the Muslims to submit, rather than compulsion to subject themselves, to the jurisdiction of the Kadhi’s Court.”
22. This honourable court being a Probate and Administration Court derives its jurisdiction from Section 47 of the Law of Succession Act which provides that:-
“The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient:
Provided that the High Court may for the purpose of this section be represented by Resident Magistrates appointed by the Chief Justice.”
23. The court in the case of In re Estate of Julius Ndubi Javan (Deceased) [2018] eKLR in discussing the jurisdiction and or duty of the Probate Court stated:-
“The primary duty of the Probate Court is to distribute the estate of the deceased to the rightful beneficiaries.”
24. The petitioner has submitted himself to the jurisdiction of this court and nothing bars this court as provided for in section 5 of the Kadhis Court Act from hearing and determining this matter as the jurisdiction of the Kadhi’s Court only applies where one has submitted to it. Accordingly, it is my finding that this court has jurisdiction to determine this matter.
25. On whether the petitioner has breached rule 22(1) of Probate and Administration Rules; and section 51 of the Law of Succession Act; the said provisions provide:-
Rule 22(1),
(1) A citation may be issued at the instance of any person who would himself be entitled to a grant in the event of the person cited renouncing his right thereto.
Section 51 of the Law of Succession Act
(1) Every application for a grant of representation shall be made in such form as may be prescribed, signed by the applicant and witnessed in the prescribed manner.
(2) Every application shall include information as to—
(a) the full names of the deceased;
(b) the date and place of his death;
I his last known place of residence;
(d) the relationship (if any) of the applicant to the deceased;
(e) whether or not the deceased left a valid will;
(f) the present addresses of any executors appointed by any such valid will;
(g) in cases of total or partial intestacy, the names and addresses of all surviving spouses, children, parents, brothers and sisters of the deceased, and of the children of any child of his or hers then deceased;
(h) a full inventory of all the assets and liabilities of the deceased; and
(i) such other matters as may be prescribed
26. In this case the applicants have argued that the petitioner has not substantiated that he is beneficiary of the deceased’s estate neither did he cite the deceased’s estate.
27. It’s my view that the issue of whether the petitioner is a beneficiary is not a pure point of law as facts must be ascertained.
28. On whether this matter is subjudice the court in the case of Cyrus Mucebiu Irungu versus Martha Wanjiru Irungu & another [2022] eKLR stated:-
“I agree with the submission by counsel for the plaintiff that the issue of sub-judice does require the ascertaining of facts or probing of evidence in the two earlier suits mentioned by the 1st defendant which this honourable court is not privy to. It therefore follows that the issue of sub-judice is not a pure point of law capable of being considered as a preliminary objection properly raised and does not meet the litmus test of what in law amounts to a preliminary objection.”
29. Accordingly, it is my finding that the same does not meet the threshold of a preliminary objection.
30. The upshot of the above is that the notice of preliminary objection lacks merit and its hereby dismissed. This being a family matter each party will bear own costs.
Orders accordingly.
Dated, signed and delivered at Nairobi this 1st day of September 2023 via Microsoft TEAMS
GREGORY MUTAI
JUDGE
In the presence of:-
No appearance for the Petitioner;
No appearance for the 1st to 5th Respondents;
No appearance for the 6th and 7th Respondents; and
Mr. Arthur Ranyondo – Court Assistant.