[2022] KEHC 15388 (KLR)

In re the Estate of Abdy Aweel Dahir Esmail (Deceased) (Matrimonial Cause E086 of 2021) [2022] KEHC 15388 (KLR) (Family) (17 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15388 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Matrimonial Cause E086 of 2021

AO Muchelule, J

November 17, 2022

IN THE MATTER OF THE ESTATE OF ABDY AWEEL DAHIR ESMAIL (DECEASED) KHADIJA ALWI HUSSEN.....................................APPLICANT VERSUS ABUBAKAR ABDIKADIR WECKAM..............1ST RESPONDENT AGIEL HASSAN AHMED...........................2ND RESPONDENT AHMED ABDILLAHI IBRAHIM..................3RD RESPONDENT HAMZA ALI AHMED.................................4TH RESPONDENT

Ruling

1. The deceased Abdy Aweel Dahir Esmail died on March 27, 2021. He left a widow Khadija Alwi Hussein and three children. He had signed and left a Wakf Deed dated August 22, 2020 in which he gave instructions to the respondents Abubakar Abdikadir Weckam, Agiel Hassan Ahmed, Ahmed Abdillahi Ibrahim, and Hamza Ali Ahmed on the mode and manner in which his properties should be dealt with upon his death. Upon his death the respondents filed Kadhi Court Succession Case No E113 of 2021 seeking the grant of probate of the deceased’s last Will.

2. It was this Kadhi’s Court case that led to the applicant to file the present originating summons seeking a declaration that the Wakf Deed was invalid. The questions she asked this court to determine were whether the Wakf Deed was valid; whether the properties named in the Wakf Deed were her matrimonial property; whether she was entitled to a permanent injunction against the respondents in relation to the property; and whether she was entitled to costs. Her case was that the Wakf Deed was invalid because the deceased failed to identify any religious, pious or charitable cause; the properties identified therein were all matrimonial properties; the deceased bequeathed more than 1/3 of his estate; the bequeathed portion was given to each of his heirs; and so on. The alleged matrimonial properties were the matrimonial home or homes, household goods and effects in the homes and other immovable and movable property jointly owned by the deceased and the applicant. She stated that, having contributed to the improvement and maintenance of these properties, she had a prior interest in them, and that guided by section 9 of the Matrimonial Property Act such interest has to be taken into account before the estate of the deceased is determined. It is for these reasons that she sought the stay of the Kadhi’s Court proceedings to allow for the determination of her interest in the deceased’s property. The originating summons was filed along with the instant application dated November 9, 2021 in which the applicant sought the stay of any action regarding the implementation of the Wakf Deed and to restrain the respondents from dealing with the property and the Wakf Deed, including its lease and transfer, pending the hearing and determination of the suit.

3. In the written submissions filed by the applicants’ counsel, reference was made to the decision in DBD v HDW [2019] eKLR in which it was acknowledged that, in the cause of a marriage between a muslim man and a muslim woman, each spouse either directly or indirectly will contribute to the acquisition of property. Such contribution of each spouse will of necessity and justice, in the event of divorce, be returned to him or her; that what is important is for the party claiming to establish contribution to the acquisition and developments of the properties during the marriage.

4. The 3rd respondent Ahmed Abdulahi Ibrahim swore a replying affidavit to state that he is the son in-law to the applicant and the deceased. He acknowledged that the applicant and the deceased had a long marriage relationship and it was possible that the applicant had contributed to the acquisition of the property subject of the Wakf Deed. He was willing to abide by whatever decision the court will make in the matter.

5. The 1st respondent filed a notice of preliminary objection to the application and suit stating that the two were subjudice as the matters therein were directly and substantially in issue in the previously instituted cause before the Kadhi’s Court, and that the Kadhis Court had the jurisdiction to hear and determine the same. Section 6 of the Civil Procedure Act was the basis of the objection.

6. Section 6 of the Civil Procedure Act provides as follows:-“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.”

7. The Supreme Court of Kenya in Kenya National Commission on Human Rights v Attorney General; IEBC & 16 Others (Interested parties) [2020] eKLR stated as follows:-“The term ‘sub-judice’ is defined in Black’s Law Dictionary 9th Edition as:“Before the court or judge for determination.”The purpose of the sub-judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit.”

8. In the submission by counsel for the applicant, although the parties in both cases are the same the issues to be determined are however very distinct and different. Her case was that whereas before the Kadhi’s Court the issue related to the issuance and confirmation of the grant of probate, in the present case what was up for determination was the determination of matrimonial property whose acquisition and development she had contributed to. Further, she stated that the Kadhi’s case had already been determined, despite there having been stay orders issued on December 16, 2021.

9. The applicant is represented by counsel. If it is true that the Kadhi’s Court proceeded to determine the dispute before it in the face of a stay order from this court, an appropriate application can be made before that court to review and/or set aside the orders made subsequent to the stay.

10. Otherwise, it is my considered opinion that the question of the validity of the Wakf Deed is a matter that is within the jurisdiction of the Kadhi’s Court to hear and determine. Similarly, now that in the submission of applicant’s counsel Islamic law acknowledges that a man and woman married under it can each contribute to the acquisition and improvement of matrimonial property, the question about her contribution to the property between her and the deceased should be adequately dealt with by the Kadhi’s Court and such contribution determined by the court.

11. It follows that the objection taken out by the 1st respondent is merited. The Kadhi’s Court is already seized of the dispute between the applicant and the respondents, the dispute was filed before the present application and originating summons, and therefore the issues before this court are subjudice. The objection is sustained, and therefore the present application and originating summons are stayed to await the decision of the Kadhi’s Court over the dispute.

12. Given the nature of the dispute, I ask that each side pays own costs.

DATED AND DELIVERED AT NAIROBI THIS 17TH DAY OF NOVEMBER 2022. A O MUCHELULEJUDGE