[2017] KEHC 2699 (KLR)

[2017] KEHC 2699 (KLR)

The High Court found that the Kadhi's Court dismissed the applicants' application dated 21.11.2016 without hearing them or giving them an opportunity to present their case regarding the inclusion of additional properties in the deceased's estate. The dismissal was done suo moto, with no indication that the respondents were served or that a replying affidavit was filed. The High Court held that, although ordinarily the applicants should have appealed, the lack of a hearing before the Kadhi's Court justified the intervention of the High Court under Article 165(7) of the Constitution. The Court determined that the application was properly before it and that the matter should be remitted to...

Citation
[2017] KEHC 2699 (KLR)
Parties
Applicant: Hassan Shariff Abdirahim; Applicant: Hussein Shariff Abdirahim; Respondent: Mohammed Abdirahim Mohammed; Respondent: Abdikadir Shariff Abdirahim; Respondent: Yahya Shariff Abdirahim; Respondent: Sadia Shariff Hassan
Court
High Court
Court Station
High Court at Marsabit
Jurisdiction
Kenya
Judgment Date
17 October 2017
Case Number
Miscellaneous Application 1 of 2017
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Refer Matter Back to Kadhi's Court
Outcome
Application allowed in part; Kadhi's Court's dismissal set aside; matter remitted for hearing.
Judges
SJ Chitembwe
Legal Topics
Succession of Estates, Distribution of Estate, Jurisdiction of Kadhis Court, Setting Aside Orders
Source Language
English
Family and Children Civil Procedure Succession of Estates Distribution of Estate Jurisdiction of Kadhis Court Setting Aside Orders

Case Brief

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Parties

Hassan Shariff Abdirahim

Applicant

Hussein Shariff Abdirahim

Applicant

Mohammed Abdirahim Mohammed

Respondent

Abdikadir Shariff Abdirahim

Respondent

Yahya Shariff Abdirahim

Respondent

Sadia Shariff Hassan

Respondent

Procedural Posture

Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Refer Matter Back to Kadhi's Court

Legal Issues

  1. 1 Whether the Kadhi's Court erred in dismissing the applicants' application without hearing them.
  2. 2 Whether the applicants' application to include additional properties in the deceased's estate should be heard on its merits.
  3. 3 Whether the High Court has jurisdiction to set aside the Kadhi's Court's dismissal and remit the matter for hearing.

Ratio Decidendi

The High Court found that the Kadhi's Court dismissed the applicants' application dated 21.11.2016 without hearing them or giving them an opportunity to present their case regarding the inclusion of additional properties in the deceased's estate. The dismissal was done suo moto, with no indication that the respondents were served or that a replying affidavit was filed. The High Court held that, although ordinarily the applicants should have appealed, the lack of a hearing before the Kadhi's Court justified the intervention of the High Court under Article 165(7) of the Constitution. The Court determined that the application was properly before it and that the matter should be remitted to...

Court Disposition

Application allowed in part; Kadhi's Court's dismissal set aside; matter remitted for hearing.

Orders

  • The judgment of the Kadhi dated 30.3.2016 shall remain in force.
  • The orders of the Kadhi's Court of 21.11.2016 dismissing the applicants' application are set aside.