1. The court below delivered a judgment in respect of the succession to the estate of Ahmed Awadh Breik aka Brek Awadh Soda (deceased) on 22nd June 2023. In that decision, the court identified the heirs of the deceased as being:
a. Eshida Ahmed Awadh (daughter);
b. Zena Ahmed Awadh (Daughter);
c. Salim Ahmed Awadh (son);
d. Omari Ahmed Awadhi (son);
e. Amina Ahmed Awadh (daughter);
f. Naima Ahmed Awadh (daughter);
g. Munira Ahmed Awadh (daughter); and
h. Karama Ahmed Awadh (son)
2. The court below noted that Karama Ahmed Awadh was deceased and that he was survived by his son, Swaleh Ahmed Awadh. Swaleh Ahmed Awadh is now deceased. It is apparent from the record that Swaleh Ahmed Awadh was survived by a widow, the 1st appellant herein, who is in occupation of the property forming the estate of the deceased, that is to say, a house without land situated at the Sargoi area of the Mombasa County.
3. Based on its findings, the court below held that:
a. That the estate of the deceased herein is a house without land, situated at Sargoi areas within Mombasa county;
b. That the heirs of the deceased herein are his eight children, 3 sons, and 5 daughters, and that each son is entitled to 18.181%, and each daughter is entitled to 9.091% (of the estate);
c. That the estate of the deceased herein is vested in the heirs in accordance with their respective shares; and
d. That the share of Karama Ahmed Awadh, being 18.181%, devolves to his son, one Swaleh Karama Ahmed Awadh.
4. It must be noted that the 1st appellant is the wife of Swaleh Karama Ahmed Awadh, while Mohamed and Anwar Swaleh are her children, and thus the children of the late Swaleh Karama Ahmed Awadh.
5. The said judgment was not appealed nor reviewed, and therefore remains valid and binding to date.
6. The respondent thereafter filed an application dated 9th August 2023, vide which he sought to evict Subehe Karama, Mohamed Swaleh and Anwar Swaleh from the house belonging to the estate of Awadh Brek aka Brek Awadh Soda. His contention was that the appellants weren’t beneficiaries of the named deceased and that they were in occupation of the estate’s property without any right, and, as such, were illegal occupants.
7. Upon considering the matter, the court below found that:
“I agree with the position of the petitioner/applicant that the respondents are strangers, non-beneficiaries, thus they don’t have no business remaining in occupation of the said house, and particularly when they are not authorised by the heirs and tenant paying rent.” (sic!).
8. The court went on to issue the following orders;
a. That this honourable court is hereby pleased to issue an eviction order against Subehe Karama, Mohamed Swaleh and Anwar Swaleh from the house belonging to the estate of the late Awadh Brek aka Brek Awadh Soda within 90 days from the date of this ruling;
b. That each party to bear its own costs.
9. The foregoing decision led to the appeal now before the court. The Memorandum of Appeal raised 5 grounds, to wit:
a. That Hon. Kadhi erred in law and fact by holding that the Appellants were strangers, non-beneficiaries, thus they do not have business remaining in occupation of the house without land situate at Sargoi, Mombasa, particularly when they are not authorized by the heirs and tenant paying rent against the weight of the evidence adduced before court;
b. That Hon. Kadhi erred in law and fact by failing to hold that the court lacked requisite jurisdiction to entertain a dispute touching on the ownership of the house and issue orders prayed in the application dated 9/8/2023;
c. That Hon. Kadhi erred in fact by failing to hold that Ahmed Awadh Breik aka Breik Awadh Soda (Deceased) is a grandfather to the Appellants against the weight of evidence adduced before court;
d. That Hon. Kadhi erred in law and fact in failing to hold that the Appellants were heirs and beneficiaries of the one room of the house without land being the estate of the deceased against the weight of evidence adduced.
e. That Hon. Kadhi erred in law and fact in failing to hold that the Estate of the deceased comprised of a single room out of the four rooms of the house without land.
f. That the learned Judge erred in law and in fact by failing to take into account the deposition contained in the Replying Affidavit sworn on 25/8/2023 by Mohamed Awadh Mohamed, Grounds of Opposition dated 25/8/2023 and submissions of the Appellants herein.
10. They sought to have this Court issue the following orders upon hearing and considering the appeal on the merits:
a. The appeal be allowed, and the ruling delivered on 25th January 2024 by the Principal Kadhi, the Hon Habib Salim Vumbi, set aside and all consequential orders thereto;
b. The costs of the appeal be allowed; and
c. Such other orders that this honourable court may deem fit to grant.
11. The appeal was canvassed by way of both oral and written submissions. The oral submissions were made on the 2nd day of October 2025 before the judge and Hon. Salim Mwaito, SPK, and Hon. Wendo Shaban Wendo, PK, as required by section 65 (1)(c) of the Civil Procedure Act.
12. In submissions dated 20th March 2025, the appellants submitted that the issues for determination were the following:
a. What is the duty of the first appellant court?
b. Whether the Kadhi’s court had jurisdiction to entertain an ownership dispute;
c. Who should bear costs?
13. On the first issue, counsel for the appellant, Mr Malombo, contended that the court ought to address itself to all the issues, appreciate the evidence adduced before the trial court and draw its own conclusion. In support of this, Mr Malombo referred the court to the case of Mursal & another v Manese (suing as the legal administrator of Dalphine Kanini Manesa) [2022] KEHC 282 (KLR), where it was stated that:
“A first appellate court is mandated to re-evaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first-hand. This duty was stated in Selle & another v Associated Motor Boat Co. Ltd.& others1 and in Peters v Sunday Post Limited.”
14. It was contended that the court below lacked jurisdiction to hear and determine land ownership disputes. Mr Malombo submitted that the late father of Mohamed and Anwar owned 2 rooms on the premises, while the respondents and Ahmed Awadh Brek owned 1 room each. Counsel accused the respondent of not having made a full disclosure of the relevant facts. He submitted that the crux of the matter in this appeal was an ownership dispute, which the court below lacked jurisdiction over. Counsel relied on the case of In re Estate of Alice Mumbua Mutua (Deceased) [2017] KEHC 8289 (KLR). Mr Malombo urged that, upon declaring the subject house to be estate property, the trial court became functus officio.
15. Counsel also prayed for costs of the appeal on the ground that costs follow the event.
16. The respondent filed written submissions dated 27th March 2025 in which his counsel, Mr Oddiaga, urged that the ruling of the court below was based on the law and the circumstances of the matter and cannot be faulted.
17. Counsel contended that the court, after hearing the matter and making its determination, had the jurisdiction to issue eviction orders.
18. Mr Oddiaga denied that the appellants are beneficiaries. Counsel submitted that the court below found the property belongs to the estate. He wondered why, if the appellants were beneficiaries, they hadn’t appealed against the judgment. Counsel further submitted that this court should restrict itself to the question of eviction and not consider anything else.
19. This is the first appeal. The duty of the first appellate court was set out in the case of Selle & another Vs Associated Motor Board Company and Others [1968] EA 123, where the court held as follows:
“An appeal to this court from a trial by the High Court is by way of a retrial, and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound to follow the trial judge’s findings of fact if it appears that either he failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence on the case generally. (Abdul Hameed Saif –Vs- Ali Mohamed Sholani (1955) 22 EACA 270).”
20. The Court is to bear in mind that it neither saw nor heard the witnesses. It is the subordinate court that has observed the demeanour and truthfulness of those witnesses.
21. This court’s jurisdiction to review the evidence should be exercised with caution. In the case of Peters vs Sunday Post Limited [1958] EA 424, the court held as follows:
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”
22. The finding of the Court below on whether or not to issue an order of eviction was an exercise by that court of a discretion. In the case of Mbogo and Another vs. Shah [1968] EA 93, the court stated that:
“…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.”
23. I have considered the memorandum, the record of appeal, and the oral and written submissions of the parties. The issues I must consider are:
a. Whether the appellants are the beneficiaries of the estate;
b. Whether the High Court has jurisdiction to issue eviction orders;
c. Who should pay costs.
24. In the impugned judgment dated 22nd June 2023, the court below found that the late Karama Ahmed Awadh was, upon his death, survived by his son, Swaleh Ahmed Awadh.
25. The learned Kadhi held at page 4 of his terse judgment that:
“That the share of the late Karama Ahmed Awadh, being 18.181%, devolves to his son, one Swaleh Karama Ahmed Awadh.”
26. I have had to reiterate the said holding in view of the contention made by the respondent that the appellants are not beneficiaries. Given the said holding, the appellants' position as beneficiaries becomes rather clearer.
27. Allah says in the Quran 4(11)
“Allah instructs you concerning your children) i.e., their portion of inheritance), for the male, what is equal to that of two females.”
Allah says in the Quran 4(23) concerning the widow’s shares:
“And for them (i.e., the wives) is one fourth if you leave no child. But if you leave a child, then for them is an eighth of what you leave.”
28. The honourable Kadhi confirmed that the 1st appellant’s husband was a beneficiary and even outlined what he was entitled to. It would appear to me that a contrary opinion was only made after the respondent filed an application for eviction.
29. In my opinion, which the assessors agree with, the appellants are not strangers. They are beneficiaries of the estate through the 1st appellant’s husband, who is their father. The learned Principal Kadhi therefore erred in finding that they were not. His finding cannot stand and must be disturbed. Since their father is deceased, the 2nd and 3rd appellants are the beneficiaries.
30. I am guided by the decision of the Court in the case of In the Matter of the estate of Veronica Njoki Wakagoto (Deceased) [2013] KEHC 1930 (KLR), where it was stated that:
“Under Part V, grandchildren have no right to inherit their grandparents who die intestate after 1st July 1981. The argument is that such grandchildren should inherit from their own parents. This means that the grandchildren can only inherit their grandparents indirectly through their own parents, the children of the deceased. The children inherit first, and thereafter, the grandchildren inherit from the children. The only time grandchildren inherit directly from their grandparents is when the grandchildren’s own parents are dead. The grandchildren step into the shoes of their parents and take directly the share that ought to have gone to the said parents.” (emphasis added).
31. I acknowledge that this Court, in fact, fell into the same error when it declined to issue stay orders. The fact that an error was made in the past while considering an interlocutory application does not mean that the same should be repeated in the judgment. Having found as above, there is no need for me to consider whether the Court below could issue the orders it did or whether such orders ought to have been sought at the Environment and Land Court. The issue, in my view, is moot.
32. The upshot of the foregoing is that the appeal, therefore, has merit and is allowed. Consequently, I set aside the ruling delivered on 25th January 2024, and substitute it with an order dismissing the said application.
33. I make no orders as to costs, as this is an appeal arising out of a succession cause involving close family members.
34. It is so ordered.
Dated and signed at Mombasa, this 13th day of March 2026. Delivered virtually through Microsoft TEAMS.
a. Eshida Ahmed Awadh (daughter);
b. Zena Ahmed Awadh (Daughter);
c. Salim Ahmed Awadh (son);
d. Omari Ahmed Awadhi (son);
e. Amina Ahmed Awadh (daughter);
f. Naima Ahmed Awadh (daughter);
g. Munira Ahmed Awadh (daughter); and
h. Karama Ahmed Awadh (son)
2. The court below noted that Karama Ahmed Awadh was deceased and that he was survived by his son, Swaleh Ahmed Awadh. Swaleh Ahmed Awadh is now deceased. It is apparent from the record that Swaleh Ahmed Awadh was survived by a widow, the 1st appellant herein, who is in occupation of the property forming the estate of the deceased, that is to say, a house without land situated at the Sargoi area of the Mombasa County.
3. Based on its findings, the court below held that:
a. That the estate of the deceased herein is a house without land, situated at Sargoi areas within Mombasa county;
b. That the heirs of the deceased herein are his eight children, 3 sons, and 5 daughters, and that each son is entitled to 18.181%, and each daughter is entitled to 9.091% (of the estate);
c. That the estate of the deceased herein is vested in the heirs in accordance with their respective shares; and
d. That the share of Karama Ahmed Awadh, being 18.181%, devolves to his son, one Swaleh Karama Ahmed Awadh.
4. It must be noted that the 1st appellant is the wife of Swaleh Karama Ahmed Awadh, while Mohamed and Anwar Swaleh are her children, and thus the children of the late Swaleh Karama Ahmed Awadh.
5. The said judgment was not appealed nor reviewed, and therefore remains valid and binding to date.
6. The respondent thereafter filed an application dated 9th August 2023, vide which he sought to evict Subehe Karama, Mohamed Swaleh and Anwar Swaleh from the house belonging to the estate of Awadh Brek aka Brek Awadh Soda. His contention was that the appellants weren’t beneficiaries of the named deceased and that they were in occupation of the estate’s property without any right, and, as such, were illegal occupants.
7. Upon considering the matter, the court below found that:
“I agree with the position of the petitioner/applicant that the respondents are strangers, non-beneficiaries, thus they don’t have no business remaining in occupation of the said house, and particularly when they are not authorised by the heirs and tenant paying rent.” (sic!).
8. The court went on to issue the following orders;
a. That this honourable court is hereby pleased to issue an eviction order against Subehe Karama, Mohamed Swaleh and Anwar Swaleh from the house belonging to the estate of the late Awadh Brek aka Brek Awadh Soda within 90 days from the date of this ruling;
b. That each party to bear its own costs.
9. The foregoing decision led to the appeal now before the court. The Memorandum of Appeal raised 5 grounds, to wit:
a. That Hon. Kadhi erred in law and fact by holding that the Appellants were strangers, non-beneficiaries, thus they do not have business remaining in occupation of the house without land situate at Sargoi, Mombasa, particularly when they are not authorized by the heirs and tenant paying rent against the weight of the evidence adduced before court;
b. That Hon. Kadhi erred in law and fact by failing to hold that the court lacked requisite jurisdiction to entertain a dispute touching on the ownership of the house and issue orders prayed in the application dated 9/8/2023;
c. That Hon. Kadhi erred in fact by failing to hold that Ahmed Awadh Breik aka Breik Awadh Soda (Deceased) is a grandfather to the Appellants against the weight of evidence adduced before court;
d. That Hon. Kadhi erred in law and fact in failing to hold that the Appellants were heirs and beneficiaries of the one room of the house without land being the estate of the deceased against the weight of evidence adduced.
e. That Hon. Kadhi erred in law and fact in failing to hold that the Estate of the deceased comprised of a single room out of the four rooms of the house without land.
f. That the learned Judge erred in law and in fact by failing to take into account the deposition contained in the Replying Affidavit sworn on 25/8/2023 by Mohamed Awadh Mohamed, Grounds of Opposition dated 25/8/2023 and submissions of the Appellants herein.
10. They sought to have this Court issue the following orders upon hearing and considering the appeal on the merits:
a. The appeal be allowed, and the ruling delivered on 25th January 2024 by the Principal Kadhi, the Hon Habib Salim Vumbi, set aside and all consequential orders thereto;
b. The costs of the appeal be allowed; and
c. Such other orders that this honourable court may deem fit to grant.
11. The appeal was canvassed by way of both oral and written submissions. The oral submissions were made on the 2nd day of October 2025 before the judge and Hon. Salim Mwaito, SPK, and Hon. Wendo Shaban Wendo, PK, as required by section 65 (1)(c) of the Civil Procedure Act.
12. In submissions dated 20th March 2025, the appellants submitted that the issues for determination were the following:
a. What is the duty of the first appellant court?
b. Whether the Kadhi’s court had jurisdiction to entertain an ownership dispute;
c. Who should bear costs?
13. On the first issue, counsel for the appellant, Mr Malombo, contended that the court ought to address itself to all the issues, appreciate the evidence adduced before the trial court and draw its own conclusion. In support of this, Mr Malombo referred the court to the case of Mursal & another v Manese (suing as the legal administrator of Dalphine Kanini Manesa) [2022] KEHC 282 (KLR), where it was stated that:
“A first appellate court is mandated to re-evaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first-hand. This duty was stated in Selle & another v Associated Motor Boat Co. Ltd.& others1 and in Peters v Sunday Post Limited.”
14. It was contended that the court below lacked jurisdiction to hear and determine land ownership disputes. Mr Malombo submitted that the late father of Mohamed and Anwar owned 2 rooms on the premises, while the respondents and Ahmed Awadh Brek owned 1 room each. Counsel accused the respondent of not having made a full disclosure of the relevant facts. He submitted that the crux of the matter in this appeal was an ownership dispute, which the court below lacked jurisdiction over. Counsel relied on the case of In re Estate of Alice Mumbua Mutua (Deceased) [2017] KEHC 8289 (KLR). Mr Malombo urged that, upon declaring the subject house to be estate property, the trial court became functus officio.
15. Counsel also prayed for costs of the appeal on the ground that costs follow the event.
16. The respondent filed written submissions dated 27th March 2025 in which his counsel, Mr Oddiaga, urged that the ruling of the court below was based on the law and the circumstances of the matter and cannot be faulted.
17. Counsel contended that the court, after hearing the matter and making its determination, had the jurisdiction to issue eviction orders.
18. Mr Oddiaga denied that the appellants are beneficiaries. Counsel submitted that the court below found the property belongs to the estate. He wondered why, if the appellants were beneficiaries, they hadn’t appealed against the judgment. Counsel further submitted that this court should restrict itself to the question of eviction and not consider anything else.
19. This is the first appeal. The duty of the first appellate court was set out in the case of Selle & another Vs Associated Motor Board Company and Others [1968] EA 123, where the court held as follows:
“An appeal to this court from a trial by the High Court is by way of a retrial, and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound to follow the trial judge’s findings of fact if it appears that either he failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence on the case generally. (Abdul Hameed Saif –Vs- Ali Mohamed Sholani (1955) 22 EACA 270).”
20. The Court is to bear in mind that it neither saw nor heard the witnesses. It is the subordinate court that has observed the demeanour and truthfulness of those witnesses.
21. This court’s jurisdiction to review the evidence should be exercised with caution. In the case of Peters vs Sunday Post Limited [1958] EA 424, the court held as follows:
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”
22. The finding of the Court below on whether or not to issue an order of eviction was an exercise by that court of a discretion. In the case of Mbogo and Another vs. Shah [1968] EA 93, the court stated that:
“…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.”
23. I have considered the memorandum, the record of appeal, and the oral and written submissions of the parties. The issues I must consider are:
a. Whether the appellants are the beneficiaries of the estate;
b. Whether the High Court has jurisdiction to issue eviction orders;
c. Who should pay costs.
24. In the impugned judgment dated 22nd June 2023, the court below found that the late Karama Ahmed Awadh was, upon his death, survived by his son, Swaleh Ahmed Awadh.
25. The learned Kadhi held at page 4 of his terse judgment that:
“That the share of the late Karama Ahmed Awadh, being 18.181%, devolves to his son, one Swaleh Karama Ahmed Awadh.”
26. I have had to reiterate the said holding in view of the contention made by the respondent that the appellants are not beneficiaries. Given the said holding, the appellants' position as beneficiaries becomes rather clearer.
27. Allah says in the Quran 4(11)
“Allah instructs you concerning your children) i.e., their portion of inheritance), for the male, what is equal to that of two females.”
Allah says in the Quran 4(23) concerning the widow’s shares:
“And for them (i.e., the wives) is one fourth if you leave no child. But if you leave a child, then for them is an eighth of what you leave.”
28. The honourable Kadhi confirmed that the 1st appellant’s husband was a beneficiary and even outlined what he was entitled to. It would appear to me that a contrary opinion was only made after the respondent filed an application for eviction.
29. In my opinion, which the assessors agree with, the appellants are not strangers. They are beneficiaries of the estate through the 1st appellant’s husband, who is their father. The learned Principal Kadhi therefore erred in finding that they were not. His finding cannot stand and must be disturbed. Since their father is deceased, the 2nd and 3rd appellants are the beneficiaries.
30. I am guided by the decision of the Court in the case of In the Matter of the estate of Veronica Njoki Wakagoto (Deceased) [2013] KEHC 1930 (KLR), where it was stated that:
“Under Part V, grandchildren have no right to inherit their grandparents who die intestate after 1st July 1981. The argument is that such grandchildren should inherit from their own parents. This means that the grandchildren can only inherit their grandparents indirectly through their own parents, the children of the deceased. The children inherit first, and thereafter, the grandchildren inherit from the children. The only time grandchildren inherit directly from their grandparents is when the grandchildren’s own parents are dead. The grandchildren step into the shoes of their parents and take directly the share that ought to have gone to the said parents.” (emphasis added).
31. I acknowledge that this Court, in fact, fell into the same error when it declined to issue stay orders. The fact that an error was made in the past while considering an interlocutory application does not mean that the same should be repeated in the judgment. Having found as above, there is no need for me to consider whether the Court below could issue the orders it did or whether such orders ought to have been sought at the Environment and Land Court. The issue, in my view, is moot.
32. The upshot of the foregoing is that the appeal, therefore, has merit and is allowed. Consequently, I set aside the ruling delivered on 25th January 2024, and substitute it with an order dismissing the said application.
33. I make no orders as to costs, as this is an appeal arising out of a succession cause involving close family members.
34. It is so ordered.
Dated and signed at Mombasa, this 13th day of March 2026. Delivered virtually through Microsoft TEAMS.