https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9093

FN v AMM (Civil Appeal E031 of 2024) [2026] KEHC 9093 (KLR) (Civ) (25 June 2026) (Judgment) Neutral citation: [2026] KEHC 9093 (KLR) Republic of Kenya In the High Court at Isiolo Civil Civil Appeal E031 of 2024 SC Chirchir, J June 25, 2026 Between FN Appellant and AMM Respondent (Being an Appeal from the Judgment of Hon. Gavava Mohammed (SRK) delivered on 26th October 2023 in Isiolo Kadhi’s court Succession cause No. E001 of 2023) Judgment 1.On 05/01/2023, the Respondent herein filed a Petition before the Kadhi’s Court at Isiolo, seeking for the ascertainment of the Assets and distribution, of the estate of MWA alias KM (Deceased).He listed the dependants as himself as the husband of the deceased ,and the Appellant as the deceased’s adopted daughter. The record of the proceedings indicate that the court ordered service of the petition on the Appellant. 2.On 9/2/2023, the Appellant responded by filing a preliminary objection challenging the jurisdiction of the Kadhi’s Court to determine the cause. She stated that neither the deceased whom she described as her mother, nor herself was a Muslim, and therefore the proceedings should not be subjected to the said court. 3.In a Ruling delivered on 30/3/2023, the trial Court dismissed the objection. 4.Thereafter the Appellant filed a substantive response to the petition and the cause went for full hearing, by way of viva voce evidence. 5.The Judgment was delivered on 26/10/23 in which the Court identified the heirs of the deceased as the Respondent herein and one AK, identified as the grandson of the deceased and son to the Appellant herein. The Court further excluded the Appellant from inheriting the estate, on grounds that she was an adopted child , and therefore was not legible to inherit the deceased’s estate , in accordance with the Islamic law. 6.It is the above, findings interalia, that triggered this Appeal. Memorandum of Appeal 7.The Appellant has listed the following grounds:a.That the Honourable learned Kadhi erred both in law and facts by disregarding the context and express provisions on jurisdiction of the Kadhi’s Court as outlined in Section 5 of the Kadhi’s Court Act Cap 11 Laws of Kenya.b.That the Honourable learned Kadhi erred both in law and facts by failing to find that the Kadhi’s Court lacked jurisdiction to hear and determine the matter at hand and/or distribute the decease estate as the deceased sis not subscribe to Islam.c.That the Honourable learned Kadhi erred both in law and facts, by failing to consider the compelling evidence adduced by the Appellant illustrating that the deceased was a Christian.d.That the honourable learned Kadhi erred both in law and facts by failing to consider the compelling evidence adduced by the Appellant and testimonies of the witnesses presented at the trial court in making his determination.e.That the Honourable learned Kadhi erred both in law and facts by deciding that he Appellant was an adopted child of the deceased in absence of any piece of evidence tendered by the Respondent in support of his claim.f.That the Honourable learned Kadhi erred both in law and facts by making a determination that the Appellant being an adopted child of the deceased and not entitled to a share of the deceased estate.g.That the Honourable learned Kadhi erred in law and facts by failing to find that the Respondent did not prove his case to the required standard which is on the balance of probabilities.h.That the Honourable learned Kadhi erred in law and facts by failing to consider the applicable principals, authorities and the submissions filed by the Appellant.i.That the honourable learned Kadhi erred in law so misdirected himself on matters of law and fact as to occasion a miscarriage of justice against the Appellant.j.That in light of the foregoing the Honourable learned Kadhi failed to do justice before him in the case at hand. 8.The Appeal was heard by way of written, and Oral Submissions. Appellant’s Submissions 9.The Appellant has submitted that in terms of Section 5 of the Kadhi’s Court Act, she ought not to have been subjected to the jurisdiction of Kadhi’s Court; that her objection to the said jurisdiction was erroneously overruled; that the act of filing a response to the Petition should not have been treated as an act of submission to the Court. 10.It is further submitted that there was no evidence that the deceased died a Muslim; that to the contrary, there was ample evidence showing she was a catholic, at the time of her demise. 11.The Appellant also submits that there was no valid marriage between the Respondent and the deceased. That KM, who was purportedly married to the Respondent under Islamic law, was a different person, not the deceased herein. 12.The Appellant further argues that being the daughter of the deceased, and in the absence of any marriage relationship between the deceased and the respondent, she is the first in consanguinity, as a beneficiary. 13.It is the Appellant’s final Submissions that the Muslim law that denies adopted children the right to inheritance, infringes the bill of Rights, and is repugnant to justice. Respondent’s Submissions 14.It is the Respondent’s Submission that a marriage was conducted between him and the deceased in the year 1974 and that the deceased was then called MW; that she converted to Islam and changed her name to KM. It is further stated that the marriage was converted into an Islamic one in 1990, and the certificate dated 22/06/1990 was issued. That the deceased last name A, belongs to the Respondent as her husband. It is therefore submitted that the deceased was a Muslim at the time of death. 15.It is the Respondent’s further submission that there was no evidence that the Appellant was an adopted child, and that even if there was such proof, Islamic jurisprudence does not recognize the right of inheritance by an adopted child. 16.The Respondent further submits that the Appellant did not appeal against the dismissal of preliminary objection on the jurisdiction of Kadhi’s court, and is therefore estopped from challenging it on Appeal. 17.It is also argued that the Appellant’s submission that the deceased had converted to Christianity, is an admission that she was once a Muslim, and that there is no evidence of her conversion to Christianity. 18.The respondent finally submits that the Appellant did not file any counter-claim to seek any orders, and that even on this Appeal she has not stated her prayers. Appellant’s response 19.In response, the Appellant submits that the marriage certificate submitted to Court did not belong to the deceased; that KM and MW were different persons. On Cross-petition, it is submitted that the Appellant could not file a counter-claim as she had rejected the jurisdiction of the Kadhi’s Court. 20.On the deceased’s contested conversion to Christianity, it is submitted that tithing cards used by the deceased at the Catholic Church, were produced and there was oral evidence presented. Analysis and Determination 21.This is a first Appeal and the mandate of the first Appellant Court is to review the evidence, carry out its own analysis and arrive at its own finding (see : Imanyara & 2 Others vs. Attorney General [2016] KECA 557 [KLR] . 22.I have considered, the trial record, the Memorandum of Appeal the parties’ submissions and the opinions of the two Assessors who sat with me on this matter. These were Hon. Dadacha (Principal Kadhi -Isiolo) and Hon. T Karanja (Principal Kadhi -Garbatula). 23.I have identified the following as issues for determination:a.Whether the Kadhi’s Court had Jurisdiction to try the Succession cause.b.Whether the deceased was a Muslim at the time of her demise.c.Whether the Appellant is entitled to a share of the deceased’s estate. The question of Jurisdiction 24.The jurisdiction of the Kadhi’s Court is founded on Article 170 (5) of the Constitution and Section 5 of the Kadhi’s Court Act.Article 170(5) of the constitution provides:“The Jurisdiction of the 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 Kadhi’s Court”Section 5 of the Kadhi’s court Act states: “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”. 25.While interpreting the above Article of the constitution and Section 5 of the Kadhi’s Court Act, the Court of Appeal in the case of Genevieve Bertrand vs. Mohammed Athman Maawiya & Ano [2014] KECA 687 (KLR held:-“Thus the jurisdiction of the Kadhi’s Court is determined by the existence of three factors. That is the subject matter of the claim or dispute, the party’s submission to the jurisdiction of the Kadhi’s Court. All the 3 factors must be present before the Kadhi’s Court” 26.There was no dispute on the fact that the Appellant herein was a non-Muslim. The record also shows that on her first appearance before court she objected to the jurisdiction of the court by way of a preliminary objection. It followed that she had not submitted herself to the court’s jurisdiction. The question of whether or not the deceased was a Muslim at time of death on the other hand was one of the contested issues. 27.Without belabouring the issue of jurisdiction, in the light of the fact that the Appellant was not a Muslim, and her rejection to jurisdiction, it was clearly evident that the trial Kadhi had no jurisdiction. He ought to have upheld the objection and downed his tools ( see : Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR) 28.In this regard I wish to address the finding of the trail Kadhi in his ruling on jurisdiction. His ruling is to the effect that the Appellant was not a party to the suit. Such a finding was clearly wrong. Once the Appellant was served, and indeed the record suggests that it is the court who gave direction on service, and she responded, she automatically became a party to the suit. Further, she had been listed as a beneficiary in the petition, and in that capacity alone she had the liberty to decide whether her beneficial interest in the estate could be determined by the kadhi’s court, or not. The wording of Article 170(5) of the constitution and section 5 of the kadhi’s court’s Act clearly show that her willingness to subject herself to the jurisdiction of the kadhi’s court was a prerequisite requirement. 29.Therefore, to the extent that one of the contestants in the cause was not a Muslim and had not submitted herself to the jurisdiction of the kadhi’s court, the said court was divested of the jurisdiction to determine the cause. 30.I have noted an issue raised by the Appellant in his submissions. He has argued that to the extent that the Appellant failed to challenge the dismissal of the preliminary objection by way of an Appeal, she is estopped from raising it in this Appeal. However, it is trite law that when a Court has no jurisdiction then whatever it does is nullity ab initio. In the case of Owners of Motor vessel Lillian ‘S’ (supra), the Judge held interalia : “Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given.” In short, want of jurisdiction is incurable and can be raised at the Appellate stage. This was also the position taken by the court of Appeal in Genevieve’s case (Supra). 31.In a nutshell, the Kadhi’s Court had no jurisdiction to entertain the Succession Cause. 32.Consequently:a).The proceedings of the trial Court in Succession Cause No E001 of 2023, are nullified, the judgment set aside, and the petition is struck off.b).For avoidance of doubt the parties are at liberty to file a fresh Petition before the High Court.c).Each party to meet their own costs. DATED, SIGNED AND DELIVERED AT ISIOLO, THIS 25TH DAY OF JUNE, 2026S. CHIRCHIR .JUDGE.In the presence of:-Roba Katelo-Court Assistant.Mr. Mshilla for the AppellantMr. Mwirigi for the Respondent.