Introduction
1. This judgment is in respect of an appeal against an order issued by the Hon. Habib Salim, Principal Kadhi, dated 6th June 2024.
2. Vide the Memorandum of Appeal dated 2nd July 2024, the Appellant raised the following grounds of appeal:
(a) The learned trial Kadhi erred in law and fact in admitting a valuation report without input from the Appellant;
(b) The learned trial Kadhi erred in law and fact in delving into the realm of proprietary rights without jurisdiction;
(c) The learned trial Kadhi erred in law and fact in failing to recognize that vacant possession amounted to eviction of the Appellant;
Pleadings
3. The Appellant herein filed a divorce cause in the Kadhi’s Court. In the judgment dated 5th December 2019, the marriage was dissolved. In its determination, the Court below:
(a) Dissolved the marriage between the Appellant and the Respondent;
(b) Ordered that the Certificate of divorce be issued;
(c) Ordered the Defendant to pay Kes 5000 per day for 90 days to the Plaintiff as Iddah maintenance;
(d) Ordered the Defendant to pay dowry of Kes 50,000;
(e) Dismissed the issue of muta;
(f) Stated that the Plaintiff was entitled to share 10% of the matrimonial house situated at Kisauni Kiembeni - Bombo Mombasa.
4. Subsequently, the court directed the matrimonial property to be valued, following which the court directed the parties to sell the suit property and share the proceeds according to the court's decree. The precise order of the court dated 6th June 2024 was as follows:
a) The valuation report is hereby admitted on record and adopted;
b) Parties are granted first priority to buy the house without land at Kiembeni for no less than the valued amount;
c) The sale proceeds in respect of the house be shared according to the order issued on 12th December 2019; and
d) The Plaintiff and tenants are hereby ordered to give vacant possession of the property within 30 days hereof.
5. Aggrieved, the Appellant lodged this Appeal.
Submissions
6. As an appeal against the decision of the Hon Kadhi, the appeal was canvassed before the Judge, sitting with two Kadhis as assessors, on 20th February 2025.
7. The Appellant submitted that the Appeal challenged the jurisdiction of the Kadhi’s Court under Article 170 of the Constitution. The jurisdiction was limited to personal status. Reliance was placed on Section 5 of the Kadhi’s Court Act. Counsel for the Appellant urged that the learned Kadhi acted without jurisdiction.
8. The Respondent relied on the submissions dated 19th November 2024 and submitted that the judgment that set out the division of the property was not appealed, and there was no review.
9. It was submitted that the subject matter was matrimonial property and the court had jurisdiction. The parties had also subjected themselves to the jurisdiction of the Kadhis’s Court. He relied on the case of HA v AH [2019]eKLR.
Analysis
10. The issue before me for determination is whether the Appeal is merited.
11. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a subordinate court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first-hand.
12. This Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong. In the case of Mbogo and Another vs. Shah [1968] EA 93, the court stated:
“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”
13. The duty of the first appellate court was set out in the case of Selle and another Vs Associated Motor Board Company and Others [1968]EA 123, where it was held as follows:
“.. this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-subordinate and the Court of Appeal is not bound to follow the subordinate Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”
14. The 3 grounds upon which the Appellant sought to challenge the impugned Order dated 6th June 2024 related to the jurisdiction of the court. It is common ground that the judgment from which the order arose was not appealed.
15. As the issue of jurisdiction of the Kadhi’s Court to determine matrimonial property rights was raised, I must state at the outset that a Court acting without jurisdiction would be employing its energy, time and resources in futility. Underscoring the centrality of jurisdiction, Nyarangi, J.A. in the celebrated case of Owners of Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Limited [1989] KLR 1 expressed himself as follows on the issue of jurisdiction:
“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…”
16. The Kadhi’s court, as a court of law, could only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is so conferred upon it. In the case of Samuel Kamau Macharia & Another v Kenya Commercial Bank and 2 others, Supreme Court Application No. 2 of 2011 [2012] eKLR, the Supreme Court 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...where the Constitution exhaustively provides for the jurisdiction of a court of law, the court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation.”
17. On my reevaluation, I note that the Kadhi’s Court had the jurisdiction to issue the orders dated 6th June 2024. I say so because under section 5 of the Kadhis’ Courts Act, the High Court had concurrent jurisdiction with the Kadhis’ Court to determine questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties professed the Muslim religion.
18. The jurisdiction of the Kadhi’s court is provided for under Article 170(5) of the Constitution, which states that:
“(5)The jurisdiction of a Kadhi's 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 Kadhis' courts.”
19. The foregoing provision is given effect in Section 5 of the Kadhis’ Courts Act, which states as follows:
“5. 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.”
20. The Court of Appeal in RMM v BAM [2015] KECA 1013 (KLR) stated as follows:
… There was no paucity of such laws, and the Kadhis’ Courts Act (Cap 11) was not an impediment, as it did not oust the jurisdiction of the High Court…
At the root of the issue is whether it was the High Court or the Kadhi’s Court that had jurisdiction to determine the matter of distribution of the matrimonial property.
21. It is common ground of the parties that the judgment from which the order challenged arose was not appealed. I am guided that as the Kadhi’s Court had jurisdiction, the Appeal against the order that the Appellant gives vacant possession of the premises fails. The Appellant and the Respondent divorced, and the Appellant is entitled to only 10% out of the proceeds of the suit premises. The suit premises cannot be sold while she is still residing therein. This would be approbating and reprobating. The doctrine of 'approbation and reprobation' has been elucidated in Halsbury's Laws of England, 4th Edn, Volume 16, at page 1012, paragraph 1507, thus:
“The principle that a person may not approbate and reprobate expresses two propositions: (1) that the person in question, having a choice between two courses of conduct is to be treated as having made an election from which he cannot resile, and (2) that he will not be regarded, in general at any rate, as having so elected unless he has taken a benefit under or arising out of the course of conduct which he has first pursued and with which his subsequent conduct is inconsistent.”
22. Faced with a similar issue in AMM v Republic [2020] KEHC 6431 (KLR), Kemei J stated as follows
“12. It should also be observed that in this appeal, the appellant is raising objections to the same plea that he took after considering the evidence that was against him and was in a language that he understood and which the learned trial magistrate relied upon in making the order he did. As a matter of principle, the appellant cannot be allowed to approbate and reprobate or change positions by turning around and saying the exact opposite of what he told the lower court, and in the process use the appeal process as a means to help him do so.”
23. I find no basis upon which to exercise my discretion in favour of the Appellants. The discretion of this court is premised on the law. In animating the discretionary powers of the Court in the case of Ramakant Rai vs. Madan Rai, Cr LJ 2004 SC 36, the Supreme Court of India rendered itself thus on the issue of judicial discretion:
“Judicial discretion is canalized authority, not arbitrary eccentricity. Cardozo, with elegant accuracy, has observed:
“The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not a yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to ‘the primordial necessity of order in the social life.’ Wide enough in all conscience is the field of discretion that remains.”
24. Therefore, the Appellant could not accept the judgment issued on 12.12.2019 to the effect that the property should be disposed of and the proceeds shared, and then turn around to appeal against an order that the property would be sold by seeking to continue residing in it. This was approbation and reprobation, which equity and the law frown upon. I am also fortified by the dictum in State of Punjab & Others vs. Dhanjit Singh Sandhu - Civil Appeal No. 5698-5699 of 2009, where the Supreme Court of India expressed itself as follows:
“The principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage. The Supreme Court in Rajasthan State Industrial Development and Investment Corporation and Another v Diamond and Gem Development Corporation Ltd. and Another, AIR 2013 SC 1241, observed that a party cannot be permitted to blow hot and cold, play fast and loose, or approbate and reprobate. Where one knowingly accepts the benefits of a contract or conveyance or an order, he is estopped to deny the validity or binding effect on him of such a contract or conveyance or order. This rule is applied to do equity; however, it must not be applied in a manner that violates the principles of good conscience.”
25. The upshot of the foregoing is that the Appeal fails. The same is dismissed.
Final Orders
26. I make the following Orders:
(i) The Appeal lacks merit and is dismissed;
(ii) This being a succession dispute, each party shall bear own costs.
Dated and signed at Mombasa, this 24th day of July 2026. Delivered virtually via Microsoft Teams.
1. This judgment is in respect of an appeal against an order issued by the Hon. Habib Salim, Principal Kadhi, dated 6th June 2024.
2. Vide the Memorandum of Appeal dated 2nd July 2024, the Appellant raised the following grounds of appeal:
(a) The learned trial Kadhi erred in law and fact in admitting a valuation report without input from the Appellant;
(b) The learned trial Kadhi erred in law and fact in delving into the realm of proprietary rights without jurisdiction;
(c) The learned trial Kadhi erred in law and fact in failing to recognize that vacant possession amounted to eviction of the Appellant;
Pleadings
3. The Appellant herein filed a divorce cause in the Kadhi’s Court. In the judgment dated 5th December 2019, the marriage was dissolved. In its determination, the Court below:
(a) Dissolved the marriage between the Appellant and the Respondent;
(b) Ordered that the Certificate of divorce be issued;
(c) Ordered the Defendant to pay Kes 5000 per day for 90 days to the Plaintiff as Iddah maintenance;
(d) Ordered the Defendant to pay dowry of Kes 50,000;
(e) Dismissed the issue of muta;
(f) Stated that the Plaintiff was entitled to share 10% of the matrimonial house situated at Kisauni Kiembeni - Bombo Mombasa.
4. Subsequently, the court directed the matrimonial property to be valued, following which the court directed the parties to sell the suit property and share the proceeds according to the court's decree. The precise order of the court dated 6th June 2024 was as follows:
a) The valuation report is hereby admitted on record and adopted;
b) Parties are granted first priority to buy the house without land at Kiembeni for no less than the valued amount;
c) The sale proceeds in respect of the house be shared according to the order issued on 12th December 2019; and
d) The Plaintiff and tenants are hereby ordered to give vacant possession of the property within 30 days hereof.
5. Aggrieved, the Appellant lodged this Appeal.
Submissions
6. As an appeal against the decision of the Hon Kadhi, the appeal was canvassed before the Judge, sitting with two Kadhis as assessors, on 20th February 2025.
7. The Appellant submitted that the Appeal challenged the jurisdiction of the Kadhi’s Court under Article 170 of the Constitution. The jurisdiction was limited to personal status. Reliance was placed on Section 5 of the Kadhi’s Court Act. Counsel for the Appellant urged that the learned Kadhi acted without jurisdiction.
8. The Respondent relied on the submissions dated 19th November 2024 and submitted that the judgment that set out the division of the property was not appealed, and there was no review.
9. It was submitted that the subject matter was matrimonial property and the court had jurisdiction. The parties had also subjected themselves to the jurisdiction of the Kadhis’s Court. He relied on the case of HA v AH [2019]eKLR.
Analysis
10. The issue before me for determination is whether the Appeal is merited.
11. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a subordinate court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first-hand.
12. This Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong. In the case of Mbogo and Another vs. Shah [1968] EA 93, the court stated:
“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”
13. The duty of the first appellate court was set out in the case of Selle and another Vs Associated Motor Board Company and Others [1968]EA 123, where it was held as follows:
“.. this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-subordinate and the Court of Appeal is not bound to follow the subordinate Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”
14. The 3 grounds upon which the Appellant sought to challenge the impugned Order dated 6th June 2024 related to the jurisdiction of the court. It is common ground that the judgment from which the order arose was not appealed.
15. As the issue of jurisdiction of the Kadhi’s Court to determine matrimonial property rights was raised, I must state at the outset that a Court acting without jurisdiction would be employing its energy, time and resources in futility. Underscoring the centrality of jurisdiction, Nyarangi, J.A. in the celebrated case of Owners of Motor Vessel ‘Lillian S’ v Caltex Oil (Kenya) Limited [1989] KLR 1 expressed himself as follows on the issue of jurisdiction:
“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…”
16. The Kadhi’s court, as a court of law, could only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is so conferred upon it. In the case of Samuel Kamau Macharia & Another v Kenya Commercial Bank and 2 others, Supreme Court Application No. 2 of 2011 [2012] eKLR, the Supreme Court 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...where the Constitution exhaustively provides for the jurisdiction of a court of law, the court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation.”
17. On my reevaluation, I note that the Kadhi’s Court had the jurisdiction to issue the orders dated 6th June 2024. I say so because under section 5 of the Kadhis’ Courts Act, the High Court had concurrent jurisdiction with the Kadhis’ Court to determine questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties professed the Muslim religion.
18. The jurisdiction of the Kadhi’s court is provided for under Article 170(5) of the Constitution, which states that:
“(5)The jurisdiction of a Kadhi's 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 Kadhis' courts.”
19. The foregoing provision is given effect in Section 5 of the Kadhis’ Courts Act, which states as follows:
“5. 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.”
20. The Court of Appeal in RMM v BAM [2015] KECA 1013 (KLR) stated as follows:
… There was no paucity of such laws, and the Kadhis’ Courts Act (Cap 11) was not an impediment, as it did not oust the jurisdiction of the High Court…
At the root of the issue is whether it was the High Court or the Kadhi’s Court that had jurisdiction to determine the matter of distribution of the matrimonial property.
21. It is common ground of the parties that the judgment from which the order challenged arose was not appealed. I am guided that as the Kadhi’s Court had jurisdiction, the Appeal against the order that the Appellant gives vacant possession of the premises fails. The Appellant and the Respondent divorced, and the Appellant is entitled to only 10% out of the proceeds of the suit premises. The suit premises cannot be sold while she is still residing therein. This would be approbating and reprobating. The doctrine of 'approbation and reprobation' has been elucidated in Halsbury's Laws of England, 4th Edn, Volume 16, at page 1012, paragraph 1507, thus:
“The principle that a person may not approbate and reprobate expresses two propositions: (1) that the person in question, having a choice between two courses of conduct is to be treated as having made an election from which he cannot resile, and (2) that he will not be regarded, in general at any rate, as having so elected unless he has taken a benefit under or arising out of the course of conduct which he has first pursued and with which his subsequent conduct is inconsistent.”
22. Faced with a similar issue in AMM v Republic [2020] KEHC 6431 (KLR), Kemei J stated as follows
“12. It should also be observed that in this appeal, the appellant is raising objections to the same plea that he took after considering the evidence that was against him and was in a language that he understood and which the learned trial magistrate relied upon in making the order he did. As a matter of principle, the appellant cannot be allowed to approbate and reprobate or change positions by turning around and saying the exact opposite of what he told the lower court, and in the process use the appeal process as a means to help him do so.”
23. I find no basis upon which to exercise my discretion in favour of the Appellants. The discretion of this court is premised on the law. In animating the discretionary powers of the Court in the case of Ramakant Rai vs. Madan Rai, Cr LJ 2004 SC 36, the Supreme Court of India rendered itself thus on the issue of judicial discretion:
“Judicial discretion is canalized authority, not arbitrary eccentricity. Cardozo, with elegant accuracy, has observed:
“The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not a yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to ‘the primordial necessity of order in the social life.’ Wide enough in all conscience is the field of discretion that remains.”
24. Therefore, the Appellant could not accept the judgment issued on 12.12.2019 to the effect that the property should be disposed of and the proceeds shared, and then turn around to appeal against an order that the property would be sold by seeking to continue residing in it. This was approbation and reprobation, which equity and the law frown upon. I am also fortified by the dictum in State of Punjab & Others vs. Dhanjit Singh Sandhu - Civil Appeal No. 5698-5699 of 2009, where the Supreme Court of India expressed itself as follows:
“The principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage. The Supreme Court in Rajasthan State Industrial Development and Investment Corporation and Another v Diamond and Gem Development Corporation Ltd. and Another, AIR 2013 SC 1241, observed that a party cannot be permitted to blow hot and cold, play fast and loose, or approbate and reprobate. Where one knowingly accepts the benefits of a contract or conveyance or an order, he is estopped to deny the validity or binding effect on him of such a contract or conveyance or order. This rule is applied to do equity; however, it must not be applied in a manner that violates the principles of good conscience.”
25. The upshot of the foregoing is that the Appeal fails. The same is dismissed.
Final Orders
26. I make the following Orders:
(i) The Appeal lacks merit and is dismissed;
(ii) This being a succession dispute, each party shall bear own costs.
Dated and signed at Mombasa, this 24th day of July 2026. Delivered virtually via Microsoft Teams.