[2024] KEKC 11 (KLR)

In re Late Kosi Bukura Keteta (Deceased) (Succession Cause E007 of 2024) [2024] KEKC 11 (KLR) (12 April 2024) (Ruling)

Neutral citation: [2024] KEKC 11 (KLR)

Republic of Kenya

In the Kadhis Court at Moyale

Succession Cause E007 of 2024

G Adan, PK

April 12, 2024

IN THE MATTER OF LATE KOSI BUKURA KETETA (DECEASED)

Between

Abdullahi Kosi Bukura

Petitioner

and

Mohamed Muktar Kosi

Respondent

Ruling

1. This is a notice of motion dated 14th March 2024 filed under certificate of urgency seeking temporary injunction and restricting the respondent from continuing with the construction of a house on the estate of the deceased herein above.

2. The application is grounded on supporting affidavit and that the petitioner is a son while the respondent is the grandson of the deceased Kosi Bukura. The petitioner claims that the respondent is on occupation of the estate and has denied the other beneficiaries, including the applicant, the opportunity to enjoy the estate of the deceased. He further said that the applicant has started constructing a new structure (house) on empty portion meant for other beneficiaries claiming ownership of the estate (plot), amounting to disinheriting them. The petitioner averred that this is against constitution right of ownership and Islamic shariah law of succession.

3. The respondent who is the grandson of the deceased herein (a son of Muktar Kosi Bukura also a deceased but a son of the deceased herein Kosi Bukura Keteta), is disputing ownership of the estate (plot) to his grandfather Kosi Bura Keteta (deceased) on the reason that the estate plot registered in the name of his late father Muktar Kosi Bukura and currently under occupation of his mother who is a widow to the deceased Muktar Kosi Bukura. He further deponed that the dispute over the said estate plot has been resolved by the elders and the petitioner’s side was given his portion and his mother was given go ahead to construct the house on her portion with the consent of the petitioner. He said he only helped his mother build, otherwise he should not have been made the respondent in this case. But the respondent said been surprised with the court’s order stopping the construction while it has happened with the consent of all parties. He further said that that the court’s order has placed his mother in economical jeopardy and unless the Honourable court lifts the court’s order, she will suffer irreparable financial loss. He said the widow has used uncured bricks and raw timber in construction and being a rainy season, the said material is prone to waste unless is shielded from the rain by putting a roof.

4. The respondent sought that since the structure is at roofing stage, the court should allow the widow to do roofing to save the material from wastage hence saving her from economic loss, which to him is not prejudicial to the petition and on the other side the widow will not claim compensation if it happened the said estate plot may be determined to be inheritance.

5. The respondent further filed a supplementary affidavit sworn by the said widow in which she deponed to be a widow of the late Muktar Kosi Bukura, disputing the ownership of the estate plot to the deceased Kosi Bukura, as the said is registered in her deceased’s husband names Muktar Kosi Bukura long before his demise for about 32 years ago. She said she had been in occupation of this property in dispute from the lifetime of her husband and until now and she had previously constructed a two-room house which is existing on the property and still in use. She averred that she is currently constructing a new house on the disputed property and the respondent by virtue of his son is only assisting her and when the dispute commenced the elders resolved it, and she gave part of the estate of late Muktar Kosi Bukura to the disputing party just to maintain kinship but not that they are part of the beneficiaries. She, therefore, depone that the intention of the petitioner seeking to stop the construction is malicious and bad intention due to that the structure is facing destruction because of heavy rain experience in the areas and she seeks the court should save her from economic loss which unless mitigated then will be irreparable. Also, she prays for the share of Muktar Kosi Bukura to be at place where the said structure is constructed if the property in dispute is determined to be the estate of late Kosi Bukura.

6. The hearing of application made, and the parties gave their evidence, where the main issue of determination to settle this matter evolved around the ownership of the suit property. Whether the property belongs to the Kosi Bukura (deceased father) or Muktar Kosi Bukura (deceased son). This question touches on the jurisdiction of Kadhi’s Court, whether the Kadhi’s Court has prior mandate to determine the dispute of ownership of land. To my considered view the proper place to determine ownership dispute of land belongs to another forum which ELC Courts and not the Kadhi’s Court.

7. Pursuant to Section 3(a) of Magistrate's Courts Act No. 26 of 2015 and and Section 13 of Environment and Land Court Act No. 19 of 2011.

8. Section 3(a) of the Magistrate’s Act No. 26 of 2015 states,“A Magistrate’s Court shall have jurisdiction in proceedings of a civil nature concerning any of the following matters under African customary law - (a) land held under customary tenure; (b) Marriage, divorce, maintenance or dowry; (c) seduction or pregnancy of unmarried woman or girl; (e) enticement of, or adultery with a married person; (f) matters affecting status, and in particular the status of widows and children including guardianship, custody, adoption and legitimacy; and (g) intestate succession and administration of intestate estates, so far as they are not governed by any written law”.

9. Section 13 of Environment and Land Courts Act No. 19 of 2011 states,1. “Jurisdiction of the Court (1) the court shall have original and appellate jurisdiction to hear and determine all disputes in accordance with article 162(2b) of the Constitution and with the provisions of this Act or any other law applicable in Kenya relating to environment and land.2. In exercise of its jurisdiction under article 162 (2b) of the Constitution, the court shall have power to hear and determine disputes -a.Relating to environmental planning and protection, climate issues, land use planning, title, tenure, boundaries, rates, rents, valuations, mining, minerals and other natural resources;b.Relating to compulsory acquisition of land;c.Relating to land administration and management;d.Relating to public, private and community land and contracts, choses in action or other instruments granting any enforceable interests in land; ande.Any other dispute relating to environment and land”.

10. In the case of In re Estate of Kinogu Mukiria (Deceased) [2022] eKLR the Court held;“Pursuant to Article 165(5) of the Constitution, this court lacks jurisdiction in matters to do with the use and occupation of, and title to, land. It is also apparent that when a dispute regarding ownership in respect of the property of a deceased person arises, then the court can set aside the share in the dispute to await the outcome of the resolution of the dispute from the court with jurisdiction. As such, the dispute as to ownership of land can only be determined by the Environment and Land Court. Once the ownership of the suit's property is ascertained by the Environment and Land Court, the probate court may proceed to distribute the said property to the rightful dependants”.

11. It is evident that the petitioner admits the registration of the said suit property in the names of the late Muktar Kosi Bukura, but he argues that this was fraudulently made by the respondent after he made sure transfer of another plot in town belonging to another brother Molu Kosi Bukura to their father’s name or their names.

12. So, to determine who is the original owner of the suit property, the parties must sort out with the issue of ownership first through the Magistrate Court f and come back to Kadhi’s court for distribution of the property to the rightful beneficiaries after they made sure and be ascertain on ownership of the estate plot.

13. However, the estate of a deceased Muslim devolves upon the heirs in their specific shares, it is not stated that either Muktar Kosi Bukura (deceased) or Kosi Bukura (deceased) have distributed the estate through a competent authority, or a Muslim Scholar preferred by them to execute the estate but according to Islamic law.

14. Neither was an administrator appointed by the court who also estate vest in him in case where there is no appointed executor. Further no person was selected on a written or verbal agreement of the beneficiaries themselves that one person among them was to perform the duties of administrator or executor, and or no person was appointed from competent authority like that of a court. This means that the said suit’s property has not been distributed to either beneficiary. In this case no person or heir is allowed to do any construction on this land whether it belongs to either side. Therefore, it is upon the either side to file for distribution of the estate if the estate is of Muktar Kosi Bukura (deceased) or of Kosi Bukura (deceased). This is in either case after determination of ownership.

15. Finally, it is hereby ordered:That the parties are hereby referred to the Magistrate’s Court for determination of ownership of the suit’s property or can resolve it locally with written consent then taken back to Kadhi’s court for further orders.The order on lifting injunction to remain as issued and should be limited to roofing completion only.That no further orders granted on cost of the suit.

DATED, DELIVERED AND SIGNED ON THIS 12TH DAY OF APRIL 2024. BY HON. ADAN GALGALO – PRINCIPAL KADHIMOYALEIn the Presence of :Abdullah Kosi Bukura – The petitionerMohamed Muktar Kosi – The respondent.Jattani Waqo – Court Assistant