[2015] KEHC 5260 (KLR)
The court found that the applicant failed to provide any evidence to substantiate claims of bias or harshness by the Kadhi at Kilifi. No proceedings or the ruling being appealed against were annexed to the application, making it impossible for the court to evaluate the merits of the allegations or the effect of the...
Source-derived case information.
- Citation
- [2015] KEHC 5260 (KLR)
- Parties
- Appellant: Awadh Mohamed Awadh; Respondent: Salim Mohamed Awadh & 3 Others
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 35 of 2014
- Procedural Posture
- Civil Appeal / Ruling on Stay of Proceedings Application
- Outcome
- application dismissed
- Legal Topics
- Stay of Proceedings, Succession Disputes, Transfer of Suits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Awadh Mohamed Awadh
Appellant
Salim Mohamed Awadh & 3 Others
Respondent
Procedural Posture
Civil Appeal / Ruling on Stay of Proceedings Application
Legal Issues
- 1 Whether there is sufficient reason to stay proceedings in Kilifi Succession Cause No. 46 of 2013 pending appeal.
- 2 Whether allegations of bias against the Kadhi are substantiated and warrant a stay.
Ratio Decidendi
The court found that the applicant failed to provide any evidence to substantiate claims of bias or harshness by the Kadhi at Kilifi. No proceedings or the ruling being appealed against were annexed to the application, making it impossible for the court to evaluate the merits of the allegations or the effect of the ruling. The matter had already been transferred between several courts at the applicant's own request, and no good reason was advanced for staying the proceedings. The application was therefore found to lack merit and was dismissed.
Court Disposition
application dismissed
Orders
- The application for stay of proceedings is dismissed.
- Costs shall follow the outcome of the case before the Kadhi.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT MALINDI
CIVIL APPEAL NUMBER 35 OF 2014
(From original Kadhi's Court Succession Cause no. 46 of 2013 Before Mohamed B. Twalib – Kadhi, Kilifi)
AWADH MOHAMED AWADH …..................................APPELLANT
VERSUS
SALIM MOHAMED AWADH & 3 OTHERS ….........RESPONDENT
RULING
The application dated 4th December, 2014 seeks stay of proceedings in Kilifi Succession Cause No. 46 of 2013. Pending the hearing and determination of this appeal, the application is supported by the Applicant's affidavit sworn on the same date. The Defendant field a replying affidavit sworn on 13th December, 2014.
The Applicant informed the court that the suit has been before the Kadhi's court at Kilifi for one year. The Kadhi has been harsh on him and he has lost faith in the Kadhi. According to him, justice will not be served if the matter is heard by that Kadhi.
The 4th Defendant opposed the application. He submitted that the case was before the Mombasa court and the Applicant applied to have it transferred to Kilifi. The case was transferred to Malindi but was later transferred to Kilifi at the Applicant's request.
I have read the application and the replying affidavit. There are no proceedings annexed that could have enabled me to evaluate how the matter has proceeded before the Kilifi Kadhi. This is a 2014 suit and it appears that it has rotated in three different courts namely Mombasa, Malindi and Kilifi. There is no good reason advanced as to why the proceedings should be stayed. The ruling allegedly being appealed against was not annexed or an order extracted. I do not know the effect of the ruling. The court canto simply conclude that the Kilifi Kadhi has been harsh on the Applicant without any evidence. I do find that the application lacks merit and it is hereby dismissed. Costs shall follow the outcome of the case before the Kadhi.
Delivered and dated at Malindi this 8th day of January, 2015.
Said J. Chitembwe
JUDGE