[2002] KEHC 560 (KLR)
The High Court found that the Kadhi's Court erred by proceeding with the succession suit while a similar matter concerning the same estate was already pending before the High Court. Section 6 of the Civil Procedure Act prohibits parallel proceedings on the same subject matter between the same parties. The High Court...
Source-derived case information.
- Citation
- [2002] KEHC 560 (KLR)
- Parties
- Appellant: Fatma Yaghut Salim; Respondent: Nuru Mahfudh & Others
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 31 of ??
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal_allowed
- Legal Topics
- Stay of Proceedings, Res Subjudice, Succession Disputes, Muslim Law Inheritance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fatma Yaghut Salim
Appellant
Nuru Mahfudh & Others
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the Kadhi's Court erred in proceeding with a suit when a similar matter was pending before the High Court.
- 2 Whether section 6 of the Civil Procedure Act (res sub judice) applied to the concurrent succession proceedings.
- 3 Which court has jurisdiction to appoint administrators and determine heirs in a Muslim estate.
Ratio Decidendi
The High Court found that the Kadhi's Court erred by proceeding with the succession suit while a similar matter concerning the same estate was already pending before the High Court. Section 6 of the Civil Procedure Act prohibits parallel proceedings on the same subject matter between the same parties. The High Court Probate and Administration cause was the first in time and thus took precedence. The Kadhi's Court should have stayed its proceedings pending the outcome of the High Court case. The appeal was allowed, and the Kadhi's Court suit was stayed accordingly.
Court Disposition
appeal_allowed
Orders
- Succession suit before Kadhi's Court number 20 of 1999 is stayed pending hearing and determination of High Court Probate and Administration number 64 of 1997.
- Each party shall pay own costs.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CIVIL APPEAL NO. 31 OF 2000
FATMA YAGHUT SALIM …………………… PLAINTIFF
VERSUS
NURU MAHFUDH & OTHERS……………… DEFENDANTS
JUDGEMENT
This appeal related to the decision of the Sheikh Ali Mwinzangu Kadhi sitting on Kadhis court at Mombasa.
The complaint is that the learned Kadhi failed to apply the provisions of section 6 of Civil Procedure Act Cap 21 Laws of Kenya when it was drawn to his attention that there were two similar suits pending. One in his court, number 20 of 1999 and High Court Probate and Administration cause number 64 of 1997. Both suits relate to the succession and distribution of the estate of one SAID SWALEH who died on 17/7/96.
Provisions of section 6 aforesaid states as follows:
“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue on a previously inititiated suit or proceeding between the same parties or between parties under whom they or any of them claim litigating under the same title where such suit or proceedings is pending on the same or of other court having jurisdiction in Kenya to grant the relief claimed.”
The term suit is defined as all civil proceedings commenced in of manner prescribed.
The learned Kadhi did find that these are two cases in respect of the same estate but he erred in failing to find that appointment of administrators is done in High Court.
The High Court has also jurisdiction to determine the heirs and their shares except in the case of Muslim estate, these issues are determined under Muslim Law. It is only in case of disputes between the parties that the matter may be resolved in the Court of Kadhi.
In the present case the Probate and Administration suit in the High Court is the first in time. Therefore the suit before the Kadhi’s Court must be stayed pending the determination of the High Court suit.
The appeal is therefore allowed. This court orders that succession suit before Kadhi’s Court being number 20 of 1999 is hereby stayed pending hearing and determination of High Court Civil case Probate and Administration number 64 of 1997.
Each party shall pay own costs.
Dated this 29th day of October 2002
HON. J. KHAMINWA
LADY COMMISSIONER