The application dated 23.9.2025 is made by persons whose names have not been disclosed to this to this court. It is not clear whether it is made by the defendants. The supporting affidavit is made by the Chief of Pongwe Kiwambale Location. Nonetheless the application seeks orders that the suit as against the 3rd Defendant Jabu Salim, the 4th Defendant Jane Odoyo, the 8th Defendant Salim Kiboga, the 9th Defendant Omar Kidevu, the 12th Defendant Bakari Juma Mwarogo, the 13th Delèndant Abdalla Hassan, the 14th Defendant Mwajumbe Hassan, the 16th Defendant Sefu Hamadi, the 17th Defendant Kimete, the 18th Defendant Kilema Diwani, the 19th Defendant Omari Bakari, the 22nd Defendant Kishinia Kijoka, the 31st Defendant Jabu Hamisi the 33rd Defendant Hassan Gambigwa, has abated and that the amended Plaint and counter-claim be amended further to reflect these developments. The court does make an entry to that effect to be on record.
The suit does proceed at the instance of the surviving Defendants in the suit and Plaintiffs in the Counter-claim. The court does visit the suit lands and inspect the same.
The application is made on the grounds that the 14 Defendants have during the existence of this suit died the earliest being in 1986 followed by the rest and that the Graves of several of them were on site and that the death certificates of only a few are available and that several persons of the Islamic faith were buried but no death certificates were issued.
The applicant contends that it is in the interest of justice that the application be allowed
The application is supported by the affidavit of Rashid Kassim Mwenyibajo the area Chief Rongwe Kiwambale who sates further to the letter of 16th August 2025 the following persons are now deceased.
Jabu Salim
Jane Odoyo
Salimu Kiboga
Omari Kidevu
Bakari Juma Mwarogo
Abdalla Hassan
Mwajumbe Hassan
Seru Hanadi
Kimele
Kitema Diwani
Kishinia Kijoka
Jabil llamisi
Hassan Gambiowa
On 8th November 2021, he wrote a letter to confirm that Jane Odoyo the 4th Defendant died on 21st June 1985 while Salim Jabil died in the year 1991. Due to the observance of the Islamic faith which many of the deceased professed, the burials followed immediately.
He has traced the death certificate of Jabu Hamisi the Defendant and the permit for burial of Juma Mwarogo the 12th Defendant. That this is a fitting case of the application of Islamic Law and the Kadhi's Act.
THAT in some of the cases I shall be able to point out the graves when the Court visits the site.
The application is opposed vide the affidavit of Nainesh Kantilal Shah who states that the said application does not stipulate the provisions of the law that it is based on. The deponent of the said application is neither a party nor a legal representative of a party in this suit and therefore the application is fatally defective.
There is no proof that the alleged deceased persons are Defendants herein or whether or not they are deceased. The death certificates relate to persons who died before the suit was filed and ate therefore not Defendants in this suit.
My Advocate advises me and I verily believe that the Plaintiffs case was heard and closed way back on 1 7th February, 2025.
The said application is prejudicial to the Plaintiff's interest of concluding this suit expeditiously.
The Defendant's application is an abuse of the Court process, misconceived and bad in law.
The plaintiff submits that the Applicant has no Locus Standi. The Applicant is not a party or an advocate or a recognized agent who can appear or act on behalf of any of the parties. The Applicant does not qualify to represent the Defendants under Order 9 rules 1 and 2 of the Civil Procedure Rules 2010 The Applicant is not a legal representative of the alleged deceased Defendants. The Applicant is a total stranger to these proceedings, a busybody and he has legal standing to make the application.
The applicant further submits that no documentation has been attached to the application to identify the Applicant. By virtue of Order 19 rule 3 (1) of the Civil Procedure Rules 2010, a deponent can only swear to facts with his personal knowledge. No sources of information are identified and therefore the honourable Court should regard all the averments as hearsay and dismiss the same.
On the 17th February, 2025, the Honourable Justice S Kibunja declined to allow a witness statement by the applicant herein or his participation as a witness in this suit. There was no appeal against the decision and it is an affront to the authority of the Court for the Applicant to swear documents on behalf of the Defendants in this suit.
The applicant argues that there is no proof of death. Sections 107 to 109 of the Evidence Act Cap 80 provide that he who alleges must prove. The Applicant has the burden to prove that the alleged deceased Defendants have died. The Applicant has failed to attach Death Certificates to confirm the alleged deaths. Section 15 of the Births and Deaths Registration Act Cap 149 of the Laws of Kenya makes it compulsory for all deaths to be reported to the Registrar and a Burial permit and Death Certificate can be issued thereafter. There is no exception even for Muslims. The Defendants have invoked Islamic law which does not apply since registration of deaths is a purely administrative matter governed by the aforesaid statute.
Articles 24 (4) and 170 (5) of the Constitution of Kenya which allows for the application of Islamic law only in matters concerning personal status, marriage, divorce and inheritance only where all the parties profess the Muslim faith.
The circumstances prevailing in this suit do not qualify for the application of Islamic law. The Defendants' reference to subsidiary legislation under the Kadhi's Courts Act is unconstitutional and highly misplaced. The Defendants are referring to obscure subsidiary legislation in total disregard of the hierarchy of law. Subsidiary legislation cannot supersede constitutional provisions and primary legislation
The defendants submits that the applicant seeks to proceed with the matter with only the surviving defendants. The fourteen defendants here over the years died commencing with the 3rd Defendant, the late Jabu Salim, who died in the year 1991, and the 4th Defendant Jane Odoyo who died on 21st June 1985.
The suit has was commenced in 2011 where the summons were allegedly served on each of the 33 defendants. The Plaintiff/Respondent has maintained that he served them including the deceased and cannot now feign ignorance.
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On whether the application has a foundation in the laws cited, the applicant contends that the local area chief is the correct party to adduce evidence of matters of death.
The applicant submits that a suit abates within one year after the death of the defendant if no substitution is made. Order 24 rule 4 states where one of two defendants dies and the cause of action does not survive or continue against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the cause of action survives or continues, the Court on application made in that behalf shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit where within one year no application is made under subrule (l), the suit shall abate as against the deceased defendants. Under Order 24 rule 7, no fresh suit shall be brought on the same cause of action.
Under section 46(1) of the Law of Succession Act, whenever it becomes known to any police officer or administrative officer that any person has died, he shall, unless aware that a report has already been made, forthwith report the fact of the death to the sub-chief of the sub-location or to the chief or administrative officer of the area where the deceased had his last known place of residence. The proper person to rely on in obtaining a burial permit and letters to support a petition for a grant is the local chief who keeps a record of the matter. Consequently, he is the correct party to depone to the matters in the supporting affidavit.
Section 165(1) of the The Kadhis' Courts (Procedure and Practice) Rules states that where it is proved that a person has not been heard of for four years by those who might be expected to have heard of him or her if he or she were alive, there shall be a rebuttable that the person is dead: Provided that in exceptional circumstances where the facts justify, the Court shall have the discretion to apply a shorter period provided that it is not less than one year.
The presumption of death for those who are not of Islamic faith is 7 years under Section 118A of the evidence Act. For those reasons, the applicant urges the court to allow the application and amend the pleadings to reflect the changes.
I have considered the application which I find was filed by the living defendants, and replying affidavit including the rival submissions and do find that the documents relied on as evidence of the death of the parties in this case are death certificates that demonstrate that some of the said parties died before the case was even filed. The applicant has not adduced evidence to prove that the said other parties alleged to have died actually died and that even if they died, no evidence has been adduced as to when they died.
He who alleges must prove is the foundational principle of the burden of proof in Kenya, codified under Sections 107–109 of the Evidence Act (Cap. 80).The legal burden rests on the party who asserts the affirmative of an issue or invokes the aid of the law, requiring them to prove the existence of facts upon which their claim for a legal right or liability depends. The legal burden rests on the party who asserts the affirmative of an issue or invokes the aid of the law, requiring them to prove the existence of facts upon which their claim for a legal right or liability depends.
The applicant has failed to prove that the aforesaid persons are dead. Those he has proved dead, died before the suit was filed and therefore the status of the said persons shall be determined during judgment in the suit. The application is dismissed. Costs of the application to the plaintiff.
The suit does proceed at the instance of the surviving Defendants in the suit and Plaintiffs in the Counter-claim. The court does visit the suit lands and inspect the same.
The application is made on the grounds that the 14 Defendants have during the existence of this suit died the earliest being in 1986 followed by the rest and that the Graves of several of them were on site and that the death certificates of only a few are available and that several persons of the Islamic faith were buried but no death certificates were issued.
The applicant contends that it is in the interest of justice that the application be allowed
The application is supported by the affidavit of Rashid Kassim Mwenyibajo the area Chief Rongwe Kiwambale who sates further to the letter of 16th August 2025 the following persons are now deceased.
Jabu Salim
Jane Odoyo
Salimu Kiboga
Omari Kidevu
Bakari Juma Mwarogo
Abdalla Hassan
Mwajumbe Hassan
Seru Hanadi
Kimele
Kitema Diwani
Kishinia Kijoka
Jabil llamisi
Hassan Gambiowa
On 8th November 2021, he wrote a letter to confirm that Jane Odoyo the 4th Defendant died on 21st June 1985 while Salim Jabil died in the year 1991. Due to the observance of the Islamic faith which many of the deceased professed, the burials followed immediately.
He has traced the death certificate of Jabu Hamisi the Defendant and the permit for burial of Juma Mwarogo the 12th Defendant. That this is a fitting case of the application of Islamic Law and the Kadhi's Act.
THAT in some of the cases I shall be able to point out the graves when the Court visits the site.
The application is opposed vide the affidavit of Nainesh Kantilal Shah who states that the said application does not stipulate the provisions of the law that it is based on. The deponent of the said application is neither a party nor a legal representative of a party in this suit and therefore the application is fatally defective.
There is no proof that the alleged deceased persons are Defendants herein or whether or not they are deceased. The death certificates relate to persons who died before the suit was filed and ate therefore not Defendants in this suit.
My Advocate advises me and I verily believe that the Plaintiffs case was heard and closed way back on 1 7th February, 2025.
The said application is prejudicial to the Plaintiff's interest of concluding this suit expeditiously.
The Defendant's application is an abuse of the Court process, misconceived and bad in law.
The plaintiff submits that the Applicant has no Locus Standi. The Applicant is not a party or an advocate or a recognized agent who can appear or act on behalf of any of the parties. The Applicant does not qualify to represent the Defendants under Order 9 rules 1 and 2 of the Civil Procedure Rules 2010 The Applicant is not a legal representative of the alleged deceased Defendants. The Applicant is a total stranger to these proceedings, a busybody and he has legal standing to make the application.
The applicant further submits that no documentation has been attached to the application to identify the Applicant. By virtue of Order 19 rule 3 (1) of the Civil Procedure Rules 2010, a deponent can only swear to facts with his personal knowledge. No sources of information are identified and therefore the honourable Court should regard all the averments as hearsay and dismiss the same.
On the 17th February, 2025, the Honourable Justice S Kibunja declined to allow a witness statement by the applicant herein or his participation as a witness in this suit. There was no appeal against the decision and it is an affront to the authority of the Court for the Applicant to swear documents on behalf of the Defendants in this suit.
The applicant argues that there is no proof of death. Sections 107 to 109 of the Evidence Act Cap 80 provide that he who alleges must prove. The Applicant has the burden to prove that the alleged deceased Defendants have died. The Applicant has failed to attach Death Certificates to confirm the alleged deaths. Section 15 of the Births and Deaths Registration Act Cap 149 of the Laws of Kenya makes it compulsory for all deaths to be reported to the Registrar and a Burial permit and Death Certificate can be issued thereafter. There is no exception even for Muslims. The Defendants have invoked Islamic law which does not apply since registration of deaths is a purely administrative matter governed by the aforesaid statute.
Articles 24 (4) and 170 (5) of the Constitution of Kenya which allows for the application of Islamic law only in matters concerning personal status, marriage, divorce and inheritance only where all the parties profess the Muslim faith.
The circumstances prevailing in this suit do not qualify for the application of Islamic law. The Defendants' reference to subsidiary legislation under the Kadhi's Courts Act is unconstitutional and highly misplaced. The Defendants are referring to obscure subsidiary legislation in total disregard of the hierarchy of law. Subsidiary legislation cannot supersede constitutional provisions and primary legislation
The defendants submits that the applicant seeks to proceed with the matter with only the surviving defendants. The fourteen defendants here over the years died commencing with the 3rd Defendant, the late Jabu Salim, who died in the year 1991, and the 4th Defendant Jane Odoyo who died on 21st June 1985.
The suit has was commenced in 2011 where the summons were allegedly served on each of the 33 defendants. The Plaintiff/Respondent has maintained that he served them including the deceased and cannot now feign ignorance.
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On whether the application has a foundation in the laws cited, the applicant contends that the local area chief is the correct party to adduce evidence of matters of death.
The applicant submits that a suit abates within one year after the death of the defendant if no substitution is made. Order 24 rule 4 states where one of two defendants dies and the cause of action does not survive or continue against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the cause of action survives or continues, the Court on application made in that behalf shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit where within one year no application is made under subrule (l), the suit shall abate as against the deceased defendants. Under Order 24 rule 7, no fresh suit shall be brought on the same cause of action.
Under section 46(1) of the Law of Succession Act, whenever it becomes known to any police officer or administrative officer that any person has died, he shall, unless aware that a report has already been made, forthwith report the fact of the death to the sub-chief of the sub-location or to the chief or administrative officer of the area where the deceased had his last known place of residence. The proper person to rely on in obtaining a burial permit and letters to support a petition for a grant is the local chief who keeps a record of the matter. Consequently, he is the correct party to depone to the matters in the supporting affidavit.
Section 165(1) of the The Kadhis' Courts (Procedure and Practice) Rules states that where it is proved that a person has not been heard of for four years by those who might be expected to have heard of him or her if he or she were alive, there shall be a rebuttable that the person is dead: Provided that in exceptional circumstances where the facts justify, the Court shall have the discretion to apply a shorter period provided that it is not less than one year.
The presumption of death for those who are not of Islamic faith is 7 years under Section 118A of the evidence Act. For those reasons, the applicant urges the court to allow the application and amend the pleadings to reflect the changes.
I have considered the application which I find was filed by the living defendants, and replying affidavit including the rival submissions and do find that the documents relied on as evidence of the death of the parties in this case are death certificates that demonstrate that some of the said parties died before the case was even filed. The applicant has not adduced evidence to prove that the said other parties alleged to have died actually died and that even if they died, no evidence has been adduced as to when they died.
He who alleges must prove is the foundational principle of the burden of proof in Kenya, codified under Sections 107–109 of the Evidence Act (Cap. 80).The legal burden rests on the party who asserts the affirmative of an issue or invokes the aid of the law, requiring them to prove the existence of facts upon which their claim for a legal right or liability depends. The legal burden rests on the party who asserts the affirmative of an issue or invokes the aid of the law, requiring them to prove the existence of facts upon which their claim for a legal right or liability depends.
The applicant has failed to prove that the aforesaid persons are dead. Those he has proved dead, died before the suit was filed and therefore the status of the said persons shall be determined during judgment in the suit. The application is dismissed. Costs of the application to the plaintiff.