[2021] KEHC 448 (KLR)

In re Estate of Wario Guracha Dambi (Deceased) (Miscellaneous Succession Cause E002 of 2021) [2021] KEHC 448 (KLR) (8 July 2021) (Ruling)

In re Estate of Wario Guracha Dambi (Deceased) [2021] eKLR

Neutral citation: [2021] KEHC 448 (KLR)

Republic of Kenya

In the High Court at Marsabit

Miscellaneous Succession Cause E002 of 2021

JN Njagi, J

July 8, 2021

In the matter of the Estate of Wario Guracha Dambi (Deceased)

Between

Denge Wario Guracha

Applicant

and

Habiba Wario Guracha

1st Respondent

Safia Wario Guracha

2nd Respondent

Asha Wario Guracha

3rd Respondent

The jurisdiction of the Kadhi’s Court is not limited in monetary terms or by the value of the estate property in a succession suit.

Reported by Kakai Toili

Jurisdiction– jurisdiction of the Kadhi’s Court – limitations on the jurisdiction of the Kadhi’s Court - whether the Kadhi’s Court was limited in monetary terms or by the value of the estate property in a succession suit - what were the options available to a party who did not wish to submit to the jurisdiction of the Kadhi’s Court – Constitution of Kenya, 2010, article 170; Kadhi`s Court Act (cap11) section 5.

Brief facts The applicant filed the instant application seeking among others, orders that any grant of letters of administration issued in the estate of the deceased herein in Marsabit Succession Cause No.E003 of 2021 (succession cause) be revoked and that the succession cause be referred to the High Court for hearing and determination. The applicant claimed that the Kadhi’s Court in the succession cause did not have pecuniary jurisdiction to deal with the suit properties which were over Ksh.50 million shillings.The 1st respondent opposed the application and deposed that the Kadhi`s Court had jurisdiction to deal with the matter as it involved a question on the inheritance of the estate of a deceased Muslim. Further, the 1st respondent claimed that there was no limitation on the pecuniary jurisdiction of the Kadhi`s Court as the applicable substantive law was the Holy Quran. The 1st respondent submitted that the applicant had not objected to the jurisdiction of the Kadhi`s Court before that court itself but had instead filed all his replies to the petition and even an application for an injunction, only for him to rush to the instant court to challenge the jurisdiction of the Kadhi’s Court before the ruling on the injunction was delivered.

Issues

What were the limitations set by the law on the jurisdiction of the Kadhi's Court?

Whether the Kadhi’s Court was limited in monetary terms or by the value of the estate property in a succession suit.

What were the options available to a party who did not wish to submit to the jurisdiction of the Kadhi's Court?

Relevant provisions of the Law Constitution of Kenya, 2010Article 170 - Kadhis' Courts(5) The jurisdiction of a Kadhi’s court shall be limited to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance proceedings in which all the parties profess the Muslim religion and submit to the jurisdiction of the Kadhi’s courts.Kadhi`s Court Act, (cap 11)Section 5 - Jurisdiction of Kadhis' CourtsA 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.

Held

Jurisdiction was the starting point for every judicial determination. For a court of law to entertain a matter when not ceased of jurisdiction was an exercise in futility. Neither could the court arrogate unto itself jurisdiction that it did not have. The jurisdiction of each court flowed from either the Constitution or legislation. The jurisdiction of the Kadhis' Courts was established under article 170 of the Constitution of Kenya, 2010 (Constitution) and was replicated in section 5 of the Kadhis' Court Act.

The only limitation set by the law on the jurisdiction of the Kadhis' Court was the subject matter of the claim or dispute (that was whether the matter related to personal status, marriage, divorce, or inheritance of a Muslim), whether both parties professed the Muslim faith and the choice on whether or not both parties submitted to the jurisdiction of the Kadhis' Court. There was no requirement of the value of the subject matter both under the Constitution and under the Kadhis' Court Act. The court could not set a limitation on what was not provided for by the law.

The Kadhi`s Court was not limited in monetary terms or by the value of the estate property. In any case, there was no valuation report produced to ascertain the estimated value of the estate. The argument that the value of the estate in the matter under consideration was beyond the monetary limit of the Kadhis' Court connoted the wrong interpretation of the law. The Kadhi`s Court had the pecuniary jurisdiction to entertain the subject matter.

Article 170(5) of the Constitution gave a party the choice of whether or not to submit to the authority of the Kadhis' Court. A party who did not wish to submit to the authority of the Kadhis' Court had, by dint of provisions of section 5 of the Kadhis' Court Act, the option of taking the matter to the High Court or a Magistrate`s Court that had jurisdiction to entertain succession matters.

The parties in the subject succession cause were Muslims. It was related to inheritance in accordance with Muslim law. It did not matter that the subject matter of the succession cause was land. The matter was therefore properly before the Kadhis' Court. If the Kadhis' Court had made any irregular orders in the succession cause that could be dealt with through other provisions of the law such as review or appeal.

There was no evidence placed before the court that the applicant declined to submit to the authority of the Kadhis' Court at Marsabit. His supporting affidavit did not mention anything to that effect. It was only his advocate who in his submissions stated that the applicant did not agree to so submit. Those were only statements made by the Bar that was of no effect.

The applicant had submitted to the authority of the Kadhis' Court by responding to the petition. The act of the applicant in filling the instant application when he had already submitted to the jurisdiction of the Kadhis' Court was an abuse of the process of the court. The Kadhis' Court had the requisite jurisdiction to entertain Marsabit Succession Cause No. E003 of 2021.

Application dismissed.

Orders Costs to the 1st respondent.

Citations CasesKenya Bertrand, Genevieve v Mohamed Athman Maawiya & another Civil Application 24 of 2013; [2014] KECA 687 (KLR) - (Explained)

Hasham, Farzila v Kadhi’s Court, Narok/Kericho & another; Khatijabai Essak Musa (Interested Party) Judicial Review 2 of 2019; [2020] KEHC 5513 (KLR) - (Explained)

In Re Estate of Ismail Osman Adam (Deceased) Miscellaneous Succession Cause 121 of 1991; [2009] KEHC 1610 (KLR) - (Explained)

Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] 3 KLR 199 - (Explained)

Noorbhai, Saifudean Mohamedali v Shehnaz Abdehusein Adamji Civil Appeal 142 of 2005; [2011] eKLR - (Explained)

Owners of the Motor Vessel '‘Lillian S’'' v Caltex Oil (Kenya) Limited [1989] KLR 1 - (Explained)

RB & another v HSB & another Succession Cause 301 of 2014 ; [2014] eKLR - (Explained)

StatutesKenya Constitution of Kenya, 2010 article 170(5) - (Interpreted)

Kadhis’ Courts Act (cap 11) section 5 - (Interpreted)

Ruling

1. The applicant herein has filed an application dated March 15, 2021 seeking for orders:(1)Spent(2)Spent(3)That any grant of letters of administration issued in the Estate of the deceased herein in Marsabit Succession Cause No E003 of 2021 be revoked.(4)That Marsabit Kadhi`s Court No E003 of 2021 be referred to the High Court for hearing and determination.(5)That the costs of the application be provided for.

2. The grounds in support of the application are:(1)That the Kadhi’s Court in Marsabit Succession Cause No E003 of 2021 does not have pecuniary jurisdiction to deal with the suit properties which are over Ksh 50 million shillings.(2)That the Kadhi’s Court in Marsabit Succession Cause No E003 of 2021 has issued orders without the grant being issued and gazetted in the Kenya Gazette.(3)That the respondents have secretly filed succession documents in Marsabit Kadhi’s Court and using the illegal orders to disinherit the beneficiaries of the estate of the deceased.(4)That the applicant is not a party to any ruling or decision made in contravention of the law.(5)That the respondents are intermeddling with the estate of Wario Guracha Dambi (deceased) and wasting away the estate before any grant being issued.

3. The application was supported by the affidavit of the applicant sworn on the March 15, 2021 in which he reiterates the grounds stated in support of the application. He further says that the deceased herein left behind a valid will dated August 16, 2016 and that he has valid Powers of Attorney to deal with the properties of the estate. That he stands to suffer irreparable loss and damage if the prayers sought are not granted. He annexed a copy of the will and the Power of Attorney to the application – marked “DWG1” and “DWG2” respectively.

4. The application was opposed by the 1st respondent vide her replying affidavit sworn on the April 14, 2021 in which she deposes that the Kadhi`s Court has jurisdiction to deal with the matter as it involves a question on inheritance of the estate of a deceased Muslim. That there is no limitation on the pecuniary jurisdiction on the Kadhi`s Court as the applicable substantive law is the Holy Quran. That the applicant has not objected to the jurisdiction of the Kadhi`s Court before that court itself but has instead filed all his replies to the petition and even an application for an injunction, only for him to rush to this court to challenge the jurisdiction of the Kadhi before the ruling on the injunction is delivered. That the application is merely aimed at defeating the ends of justice and is an abuse of the process of the court and ought to be dismissed.

5. It was further deposed that the purported will and Power of Attorney are forgeries and thus invalid as the maker thereof had no soundness of mind and therefore lacked the mental capacity to execute the documents. The allegation of intermeddling with the estate was denied. It was also denied that the Kadhi has issued a grant of letters of administration in respect of the matter.

Submissions 6. The applicant was represented by the firm of Kelvin Nyenyire & Co Advocates while the respondents were represented by the firm of Maingi Kamau & Co Advocates.

7. The advocates for the applicant submitted that the Kadhi`s Court does not have the requisite pecuniary jurisdiction to entertain the matter. Moreso that the issues of fraud and forgery alleged by the respondents are not within the jurisdictional competence of the Kadhi`s Court. That the issues raised deal with land which are beyond the jurisdiction conferred on Kadhi`s Court by the Constitution.

8. It was submitted that though the applicant professes the Muslim faith, he does not agree to the matter being determined by the Kadhi`s Court. That once a party fails to submit, the Kadhi`s Court ceases to exercise jurisdiction pursuant to article 170(5) of the Constitution.

9. It was further submitted that the applicant does not object to the Kadhi`s Court dealing with the estate for purposes of distribution. However, that the registration of the estate properties in the names of the beneficiaries before distribution may call for rectification of land registers which only the High Court or the Environment and Land Court may lawfully order. Hence therefore that there is need for the hearing and determination of the matter being done by the High Court.

10. The advocates for the respondents on the other hand submitted that no valuation report for the estate has been produced to demonstrate that the estate is valued in the excess of Ksh 50 million. Moreso that the Kadhi`s Court has the original jurisdiction in determining questions of Muslim law of inheritance in proceedings where all parties profess the Muslim religion. That there is no law that limits that jurisdiction either territorially or pecuniary-wise. The advocates relied on the case of Farzila Hasham v Kadhi`s Court, Narok/ Kericho & another: Khatijabai Essak Musa (Interested Party)[2020]eKLR where Bwononga J was held that:“Unlike magisterial courts whose jurisdiction is governed as to the place of filing by sections 11 to 15 of the Civil Procedure Act (cap 21) Laws of Kenya; and section 5 of the Magistrates’ Courts Act (cap 5) Laws of Kenya in terms of pecuniary jurisdiction, the Kadhi’s court is not limited in terms of both territory and pecuniary jurisdiction. The affidavit evidence of the ex parte applicant that the jurisdiction of the Kadhi’s court is limited in terms of monetary jurisdiction; since the estate is worth Ksh165,730,000/= is without legal basis. The Kadhi’s Court therefore had jurisdiction to entertain the instant succession cause.”

11. It was submitted that the dispute before the court relates to the distribution of the estate of a deceased Muslim which estate involves land. That the dispute does not fall under the realm of the Environment and Land Court.

Analysis and Determination 12. The applicant challenges the pecuniary jurisdiction of the Kadhi`s Court to entertain the subject succession cause on the grounds that the value of the estate is in excess of Ksh 50 million. The respondent on the other hand contends that there is no law limiting the Kadhi`s Court on pecuniary jurisdiction. The issue for determination as I see it is therefore whether the Kadhi`s Court has the requisite jurisdiction to entertain the subject matter. If the Kadhi has jurisdiction, the other auxiliary question is whether the applicant has submitted to the jurisdiction of the Kadhi`s Court.

13. It has to be noted from the outset that jurisdiction is the starting point on every judicial determination. For a court of law to entertain a matter when not ceased of jurisdiction is an exercise in futility. Neither can the court arrogate unto itself jurisdiction that it does not have. In the case of The Owners of Motor Vessel “Lilian S” v Caltex Oil (K) Limited [1989] KLR, Nyarangi JA (as he then was) had the following to say on jurisdiction:“Jurisdiction is everything. Without it, a court has no power to make one more step. A court of Law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”

14. The jurisdiction of each court flows from either the Constitution or legislation. In Samuel Kamau Macharia & another v Kenya Commercial Bank & 2 others[2012]eKLR Supreme Court held that:“A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with counsel for the first and second respondents in his submission that the issue as to whether a court of law has jurisdiction to entertain a matter before it, is not a matter of mere technicality; it goes to the very heard of the matter, for without jurisdiction, the court cannot entertain any proceedings. This court dealt with the question of jurisdiction extensively in the matter of the Interim Independent Electoral Commission (applicant), Constitutional Application Number 2 of 2011. Where the Constitution exhaustively provides for the jurisdiction of a Court of Law, the court must operate within the Constitution limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a court of law beyond the scope defined by the Constitution. Where the Constitution confers power upon parliament to set the jurisdiction of a court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law.”

15. The jurisdiction of the Kadhi`s Courts is established under article 170 of the Constitution of Kenya 2010. Article 170(5) provides that:“The jurisdiction of a Kadhi’s Court shall be limited to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance proceedings in which all the parties profess the Muslim religion and submit to the jurisdiction of the Kadhi’s courts.

16. The above is replicated in section 5 of the Kadhi`s Court Act, cap 11 Laws of Kenya which states that:“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.”

17. In the case of RB & RGO v HSB & ASB [2014] eKLR Muriithi J cited the case of Genevieve Bertrand v Mohamed Athman Maawiya and another[2014] eKLR where the Court of Appeal interpreted article 170(5) of the Constitution and stated that:“23. In the case of the Kadhi’s Court, it is a creature of the Constitution (section 66 of the retired Constitution and article 169 of the current Constitution). The jurisdiction of the Kadhi’s Court is specifically defined under article 170(5) of the Constitution and section 5 of the Kadhi’s [Court] Act, as “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”. 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 Muslim faith, and the party’s submission to the jurisdiction of the Kadhis Court.”

18. Going by the above I need only emphasize that the only limitation set by the law on the jurisdiction of the Kadhi`s Court is the subject matter of the claim or dispute (i.e, whether the matter relates to personal status, marriage, divorce or inheritance of a Muslim), whether both parties profess the Muslim faith and the choice on whether or not both parties submit to the jurisdiction of the Kadhi`s Court. There is no requirement of the value of the subject matter both under the Constitution and under the Kadhi’s Act. The court cannot thereby set a limitation on what is not provided for by the law. I a m in agreement with the finding by Bwononga J in Farzila Hasham v Kadhi`s Court Narok/Kericho (supra) that the Kadhi`s Court is not limited in monetary terms or by the value of the estate property. In any case there was no valuation report produced in this matter to ascertain the estimated value of the estate. The argument that the value of the estate in the matter under consideration is beyond the monetary limit of the Kadhi`s Court connotes wrong interpretation of the law. In the premises I find that the Kadhi`s Court has the pecuniary jurisdiction to entertain the subject matter.

19. The other question is whether the applicant has submitted to the jurisdiction of the Kadhi`s Court. Article 170(5) of the Constitution gives a party the choice on whether or not to submit to the authority of the Kadhi. A party who does not wish to submit to the authority of the Kadhi has, by dint of provisions of section 5 of the Kadhi`s Court Act, the option of taking the matter to the High Court or a Magistrate`s Court that has jurisdiction to entertain succession matters. This choice was emphasized by the Court of Appeal (Githinji JA,as he then was) In Re the Estate of Ismail Osman Adam (Deceased),Noorbanu Abdul Razak v AbdulKader Ismail Osman,Mombasa Civil Appeal No 285 of 2009 as cited in RB & RGO v HSB & ASB (supra)where it was held that:“There should not be any confusion between the jurisdiction of the High Court to entertain a dispute relating to testamentary or intestate succession to estates of Muslims and the substantive law applicable in the High Court in such disputes. Section 47 makes it clear that the High Court has jurisdiction to entertain any application and determine any dispute under the LSA [Law of Succession Act]. However, by section 48(2) the jurisdiction of the High Court is not exclusive as Kadhi’s Courts have also jurisdiction to entertain disputes relating to the estate of deceased Muslims. However, if the High Court assumes jurisdiction to the estate of a deceased Muslim, then by virtue of section 2(3) [of the Law of Succession Act], the law applicable in the High Court as to the devolution of the estate is the Muslim law and not the LSA. As an example, disputes relating to the validity of a will made by a Muslim and the ascertainment of heirs and shares of each will be determined in accordance with Muslim law. In Saifudean Mohamedali Noorbhai v Shehnaz Abdehussein Adamji, Mombasa Civil Appeal No 142 of 2005 (unreported) this Court said in part:‘Kenya Courts have held in past judgments that every litigant of whatever religious persuasion, has the option of going directly to the High Court, and a Muslim is not necessarily restricted to the jurisdiction of the Kadhi’s Court’.However, by virtue of section 2(4) LSA, the law relating to the administration of the Estate of the deceased Muslim is the one stipulated in part VII of the Act, that is, sections 44-95 in so far as those provisions are not inconsistent with Muslim law.”

20. The parties in the subject Succession Cause are Muslims. It relates to inheritance in accordance with Muslim Law. It does not matter that the subject matter of the Succession Cause is land. The matter is therefore properly before the Kadhi’s Court. If the Kadhi has made any irregular orders in the Succession Cause this can be dealt with through other provisions of the law such as review or appeal.

21. There was no evidence placed before the court that the applicant declined to submit to the authority of the Kadhi`s Court at Marsabit. His supporting affidavit does not mention anything to the effect. It is only his advocate who in his submissions stated that the applicant does not agree to so submit. These were only statements made from the bar that are of no effect.

22. The 1st respondent deposed in her replying affidavit that the applicant responded to the petition and even filed an application for injunction. The applicant did not dispute those facts. It is then clear that the applicant has submitted to the authority of the Kadhi by responding to the petition. I agree with the 1st respondent that the act of the applicant in filling the instant application with this court when he had already submitted to the authority of the Kadhi was an abuse of the process of the court.

23. The upshot is that the Kadhi’s Court has the requisite jurisdiction to entertain Marsabit Succession Cause No E003 of 2021. The instant application is lacking in merit and is dismissed with costs to the 1st respondent.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT MARSABIT THIS……8TH .……DAY OF JULY 2021. JESSE N. NJAGIJUDGEIn the presence of:……………………………...................… for Applicant……………………………...................... for RespondentsParties:Respondents ………….……………………..............…….Applicant ………….…………….......................……….….Court assistant …………………………….………..…….