[2014] KEHC 2196 (KLR)
The court held that the application, though framed as a miscellaneous application, was in substance an appeal against the decision of the Kadhi's Court and the subsequent vesting order issued by the High Court. As a court of concurrent jurisdiction, the High Court cannot sit in appeal over its own orders or those of...
Source-derived case information.
- Citation
- [2014] KEHC 2196 (KLR)
- Parties
- Applicant: Kibibi Mzee Sharbaidi; Applicant: Hadija Mzee Sharbaidi; Respondent: Mwanamkuu Mzee Mwitu
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 13 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion to Set Aside Vesting Order
- Outcome
- application dismissed with costs to the respondent
- Judges
- JV Juma
- Legal Topics
- Succession, Vesting Orders, Appeals Procedure, Distribution of Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kibibi Mzee Sharbaidi
Applicant
Hadija Mzee Sharbaidi
Applicant
Mwanamkuu Mzee Mwitu
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion to Set Aside Vesting Order
Legal Issues
- 1 Whether the vesting order was obtained through false misrepresentation and fraud.
- 2 Whether the applicants are rightful heirs of the deceased's property.
- 3 Whether the applicants' mother was a wife of the deceased at the time of his death.
Ratio Decidendi
The court held that the application, though framed as a miscellaneous application, was in substance an appeal against the decision of the Kadhi's Court and the subsequent vesting order issued by the High Court. As a court of concurrent jurisdiction, the High Court cannot sit in appeal over its own orders or those of another court at the same level. The applicants' proper recourse was to file a formal appeal against the Kadhi's decision, not to seek to set aside the vesting order through a miscellaneous application. The application was therefore procedurally improper and without merit, leading to its dismissal with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
MISC. CIVIL APPLICATION NO. 13 OF 2012
IN THE MATTER OF MZEE SHARBAIDI KHAMIS (DECEASED)
IN THE MATTER OF AN APPLICATION FOR ISSUE OF A VESTING ORDER
IN FAVOUR OF MWANAMKUU MZEE MWITU THE PETITIONER IN KADHI’S
COURT AT MOMBASA SUCESSION CAUSE NO. 33 OF 2011.
1. KIBIBI MZEE SHARBAIDI
2. HADIJA MZEE SHARBAIDI…….........PLAINTIFFS/APPLICANTS
VERSUS
MWANAMKUU MZEE MWITU………..DEFENDANT/RESPONDENT
RULING
By way of a Notice of Motion dated 2-11-2012 the Applicants seek inter alia the following orders:-
2. “THAT the extraction and/or enforcement of the order made herein on 31st October 2012 vesting the sole ownership of Title No. Msa Block XVI 11089in the Respondent be stayed.
3. THAT the aforesaid vesting order be set aside.
4. THAT the Respondent be restrained from selling or otherwise dealing adversely with the property comprised in Title No. Msa Block XVI 11089.
5. THAT the Applicants as the children of the deceased are entitled in law and in equity to a share of the deceased’s estate.
6. THAT the Respondent, the Applicant, Salama Mzee Shabaidand Fatma Mzee Shabaidi be registered together as owners in common of the parcel of land comprised in Title No. Msa Block XVI 11089.
7. Such other further orders/directions as the justice of this case may necessitate”
Prayer No. 2 seeking a stay of the vesting order was granted on interim basis on 5/11/2012. The application was disposed of by way of written submissions after which both advocates appeared in court in order to highlight said written submissions.
I have carefully perused and given consideration to the submissions on record. This application arises from Succession Cause No. 33 of 2011 heard by the Hon. Kadhi in Mombasa. The Hon. Kadhi did on 30/1/2012 make orders with respect to the distribution of the estate MZEE SHARBAIDI KHAMIS. The relevant part of the Kadhi's order read as follows
“A House without land at Mwembe Tanganyika – Title No. Mombasa/Block XVI/1089 be transmitted and/or transferred in the names of the Petitioner herein MWANAMKUU MZEE MWITU as agreed by all the other heirs mentioned above”
Based on the judgment of the Kadhi the High Court sitting in Mombasa did issue a vesting order in favour of the Respondent. It is this vesting order which the applicants are seeking to challenge.
In their written submissions the applicants have raised the following points for determination
“ - Whether or not the vesting order was obtained through false misrepresentation and fraud
Whether the Applicants are rightfully heir of the deceased property
Whether their mother was a wife of the deceased at the time of his death
Which party is the rightful owner of the said property”
Looking at the above issues raised by the Applicant, I do agree with Counsel for the Respondent that this is more of an appeal against the decision of a Kadhi than a Miscellaneous application. The applicants are in effect asking this court to set aside and/or overturn the decision of the learned Kadhi. This can only be done by way of an appeal. The vesting order was issued by the High Court. This court being a court of concurrent jurisdiction cannot sit in appeal over a High Court decision. This court has been wrongly moved. The correct procedure for the aggrieved applicants would have been to file an appeal against the decision of the Kadhi. I find no merit in this application. The same is hereby dismissed with costs to the respondent.
Dated and Delivered in Mombasa this13thday ofOctober, 2014.
No appearance by either parties.
M. ODERO
JUDGE
13/10/2014