[2003] KEHC 645 (KLR)
The court found that the preliminary objection was premature because the facts, particularly regarding the validity of the will, were not admitted or settled. Since the respondent's replying affidavit questioned the validity of the will, the court determined that it was necessary to first resolve these factual...
Source-derived case information.
- Citation
- [2003] KEHC 645 (KLR)
- Parties
- Plaintiff: Jamal Ramadhan; Plaintiff: Japheth Asige; Defendant: Farida Almasi Mukira
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 426 of 2002
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Legal Topics
- Preliminary Objection, Probate and Administration, Muslim Estates, Jurisdiction of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jamal Ramadhan
Plaintiff
Japheth Asige
Plaintiff
Farida Almasi Mukira
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the High Court has jurisdiction to hear matters relating to the estate of a deceased Muslim under the Law of Succession Act.
- 2 Whether a preliminary objection on jurisdiction is proper at this stage given the disputed validity of the will.
Ratio Decidendi
The court found that the preliminary objection was premature because the facts, particularly regarding the validity of the will, were not admitted or settled. Since the respondent's replying affidavit questioned the validity of the will, the court determined that it was necessary to first resolve these factual disputes before addressing the jurisdictional issue. Consequently, the court dismissed the preliminary objection, holding that it could not be properly determined at this stage without a full consideration of the facts.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed.
- The matter shall proceed to substantive hearing.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA CIVIL CASE NO. 426 OF 2002 IN THE MATTER OF: THE ESTATE OF THE LATE MZEE ALMASI MUKIRA (DECEASED) IN THE MATTER OF: THE SUCCESSION ACT CAP 160 IN THE MATTER OF: THE EXECUTORS & TRUSTEES OF THE WILL OF THE LATE MZEE AMASI MUKIRA AND IN THE MATTER OF: PROBATE & ADMINISTRATION RULES BETWEEN JAMAL RAMADHAN
JAPHETH ASIGE …………………………………………… PLAINTIFFS
VERSUS
FARIDA ALMASI MUKIRA ….……..……………………. DEFENDANT
R U L I N G
The applicants came to Court by originating summons under the Provisions of order 36 rule 1 of the Civil Procedure Rules. At the same time they filed a chamber Summons under the Provisions of Rule 49, 58, 59, 73 of the Probate & Administration Rules, Section 45, 47, 79 and 82 of the law of Succession Act and Section 3A, order 39 rules 1, 2, 3, 9 of the Civil Procedure Act. By this application the applicants sought orders of an injunction which would effectively restrain the Respondent from dealing with or causing obstruction as far as the operations of a business known as Rembo Guest house and the property situated on Plot Mombasa/Block XX/62A. The application was for hearing on 18. 12. 02 when Mr. Balala for the Respondent said his point of Preliminary objection should be heard first and since there was no objection by the Applicant’s Counsel, Mr. Wameyo, it is the said objection which is the subject of this Ruling.
Briefly the issues arising in the originating summons are that the Applicants are the Executors and Trustees of the Will and Estate of Mzee ALMASI MUKIRA while the Respondent is one of the beneficiaries under the said will.
The objection by Mr. Balala is that the Court has no jurisdiction to deal with this matter as the same involves the Estate of a Muslim and the same therefore does not fall under the Provisions of the Law of Succession
On the other hand Mr. Wameyo submitted that the application is properly before the court under the Provisions of order 36 rule 1 of the Civil Procedure Rules. I have considered the arguments from both sides and what comes out clearly is that there are issues that need to be dealt with as regards the legality of the will and also whether any orders sought under the armpit of the law of Succession Act can issue. Therefore a preliminary objection at this stage in my view is premature as all the facts are not admitted. In the Replying Affidavit by the Respondent the validity of the Will is being questioned.
In the circumstances the objection in this case is premature and is dismissed.
Dated and Delivered at Mombasa this 13th day of March, 2003.
P.M. TUTUI
COMMISSIONER OF ASSIZE