[2022] KEHC 2361 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL APPEAL NO. 12 OF 2017

KOMBO SALIM.......................................................................................APPELLANT

VERSUS

SAID MOHAMED..................................................................................RESPONDENT

(Being an appeal from the Judgmentdelivered on 21st August 2015 and

Ruling of 9th March 2017 by Learned Hon. Kadhi in Kadhi’s

Succession Case No.28 of 2015)

J U D G M E N T

Background

1. The deceased herein Riadha Abdalla Komora died sometimes in 1992. During her lifetime, she was blessed with three children a mong them; Kombo Salim, Omar Salim who died after the mother in the year 2002 and Mohamed Said who pre-deceased the mother the year 1992. Vide succession cause No.28 of 2015, one Said Mohamed a grand-son to the deceased by virtue of being a son to Mohamed Said the deceased’s son(hereafter the respondent), petitioned the Kadhi’s court Mombasa against Kombo Salim her uncle the only surviving son to the deceased(hereafter the appellant) seeking;

a. Determination of the deceased’s heirs and their shares according to Islamic law

b. An order the deceased(sic) property to be distributed to the heirs according to Islamic law

c. Vesting order to the Lands Registrar to transfer the deceased’s property/estate into the names of the heirs.

d. That the respondent present all the ownership documents of the property/estate of the deceased to the Hon. Kadhi’’s court for safe custody until the completion of the petition.

e. Any other relief

2. The respondent (petitioner) stated that his father pre-deceased his grandmother, and when the grandmother died in 1994, she had no liabilities. That the late Riadha Abdalla Komora (deceased) left a Swahili house (herein after referred to as the property) at Magogoni area in Kisauni. It was also stated that the family of the Appellant herein had renovated, and assumed ownership of the whole property of the deceased yet the respondent’s father contributed to the construction of the said property.

3. That it had been agreed before the chief, Kisauni location, between the families of Mohamed Said and Omar Salim aka Omar Ana Baboya, that the property in question belonged to Mohamed Said and Riadha Abdalla Komora.

4. In response, the appellant/respondent Kombo Salim, filed a reply dated 27th March 2015 stating that, under Islamic law, his late brother Mohamed Said having pre-deceased his mother, his family was not entitled to inherit anything from their late mother. According to him, only him and Omar Salim survived their late mother and therefore the only children (heirs) entitled to inherit the estate of their mother.

5. He further stated that, his brother Omar Salim did not leave any known child/children and therefore he is the only surviving heir of the deceased hence entitled to inherit the subject property absolutely. He denied the claim by the respondent (petitioner) that his late father Mohamed Said did contribute towards the construction of the subject house nor was there any agreement signed before the chief over ownership of the house.

6. After hearing both parties viva voce, the hon. Kadhi Mwidadi Salim delivered his judgment on 21st August 2015 holding that; there was evidence that the house in question was constructed by the deceased with the help of Mohamed Said hence the deceased was under obligation to make Wasiat. On that basis, the hon. Kadhi decided to give 1/5 of the estate to the family of Mohamed Said and the balance to the legal heirs namely Kombo Salim and Omar Salim ½ share each. The court went further to share out the entitlement of each of the children of Mohamed Said and Omar Salim.

7. Subsequently, on 8th September, one Riadha Omar claiming to be a child to one Omar Salim filed a notice of motion of even date seeking; to be enjoined in the proceedings as an interested party and that the Judgment delivered on 21st August 2015 be set aside and or be reviewed. The application was anchored on the argument that some beneficiaries who were given shares were not legitimate heirs to the deceased among them one Omar whose mother was not legally married to Omar Salim and that some heirs’ names were wrongly spelt out.

8. In the same vein one Nabwana Faiza Kombo claiming to be a son to the appellant(respondent) filed a notice of motion dated 8th September 2016 seeking; to be enjoined as an interested party ; an order to issue for his father to appear in person; that the property to be valued and he be allowed to buy out the rest of beneficiaries’ shares and that some of the children of Omar Salim who were left out among them Salim, Habona and Esha be recognized and included as heirs to the deceased.

9. In response to Nabwana’s application, Riadha filed a replying affidavit sworn on 3rd November 2015 insisting on distribution of the estate after making corrections on heirs’ misspelt names and status. Equally, Said Mohamed the respondent (petitioner) filed his replying affidavit sworn on 24th Feb.2016 seeking to have the application by Nabwana dismissed and the Kadhi’s judgment enforced in its entirety.

10. In response to the application of Riadha dated 8th September 2015, the appellant filed a replying affidavit sworn on 15th February 2016 seeking to have some of Omar’s children left out included as heirs to the estate and that having extensively improved the status of the house by injecting about 1. 7 million, he be allowed to purchase it together with his children.

11. During the pendency of the two applications for joinder, Kombo Salim (the appellant) filed a notice of motion dated 29th April 2016 seeking orders that; Succession Swahili house Magogoni area kisauni Mombasa standing on plot no. 85/MNN/11 be valued by registered valuer and sold with priority being given to him to purchase the said house; that the total renovations be ascertained by the court and hereafter the same be deducted before actual distribution; the land lord’s accumulated ground rent debt be ascertained and the same be deducted before actual distribution. The application was premised on grounds that the applicant has been staying in the said house since childhood and that he had heavily invested in improving the house hence the need to allow him purchase the house less the cost incurred in improving the same.

12. In response, Said Mohamed filed a replying affidavit sworn on 6th May 2016 opposing the application on the ground that it was baseless as the appellant had no business improving the house after judgment had been delivered and such claim was not raised during the hearing and that the said judgment had not been challenged on appeal nor review. That the appellant was all a long utilizing rental income collected from the house comprising of 12 single rooms at a sum of kshs144,000 per year for the last 20 years to the exclusion of all beneficiaries and that he has been forcefully occupying the house. He categorically opposed the sale of the house as it will disenfranchise rightful heirs their inheritance.

13. Meanwhile, on 5th May 2016, the hon. Kadhi delivered a ruling in respect of the two applications of 8th September 2015 by Nabwana and Riadha. The application by Nabwana was dismissed hence could not be enjoined as a party considering that her father the appellant was a party to the proceedings. A s regards Riadha’s application, the same was allowed hence her joinder as an interested party. The court went further to set aside the judgment of 21st August 2015.

14. When the application of 29th April 2016 came up for hearing, the hon. Kadhi ordered for valuation of the property to be done and further ordered for witnesses to be called to testify afresh and more specifically to prove the alleged developments done on the subject property as claimed by the appellant.

15. Vide its ruling dated 9th March 2017, the hon. Court found that the respondent (appellant) had failed to prove the source of the funds used to renovate the premises. He further directed parties to do legal assessment of rent collected since the deceased died.

16. Aggrieved with the above orders, the appellant preferred an appeal based on the five (5) grounds:

(1). That the Learned. Kadhi erred in Law and misdirected the court by granting the petitioner and his siblings 1/5 of the Estate without any legal basis.

(2). That the Learned Kadhi erred in Law and fact by granting remedies not prayed for in the pleadings.

(3).That the Learned Kadhi erred in Law by applying the principle of Wasiyat Wajibah without any legal basis under Islamic Law.

(4). That the Learned Kadhi erred in Law and fact by opening succession cause Number 28 of 2015 after judgment had been entered.

(5). That the Learned Kadhi erred in Law and fact by directing legal assessment of rent to be undertaken without legal and factual basis.

17. Directions were given that the Appeal be canvassed by way of written submissions. Accordingly, the Appellant complied and filed his submissions on 28th August 2020.

18. Mr. Mwadzogo learned counsel for the applicant submitted that the court on its own motion opted to create an interest for Said Mohammed in the estate of the deceased through a succession cause and further went ahead to distribute the said interest to the respondent. That the finding by the Hon. Kadhi was not supported by any adduced evidence to back the allegation that the house was owned by Riadha Komora and Said Mohammed hence a creation of the Kadhi. Counsel further submitted that the finding by the learned Kadhi that the children of Said Mohamed are entitled to 1/5 of the estate amounts to a determination touching on ownership of property to which the Hon. Kadhi has no jurisdiction.

19. On the question that the hon. Kadhi granted orders not sought in the petition and wrongly appliedwasiyatul waajibah , counsel submitted that it was a creation of the Hon. Kadhi on his own motion. That the issue ofwasiyatul waajibahdid not flow nor arise from the pleadings as the respondent did not approach the court seeking the creation of wasiyatul waajibah, while demanding that his grandmother failed to create a wasiya for them. Counsel contended that the appellant was ambushed by the court upon introduction of the said concept hence not given an opportunity to respond to the issue of wasiyatul waajibah.

20. Counsel also submitted that judgment by the Kadhi was delivered on 21st August 2015. That, the Hon. Kadhi made an error and unprocedurally reopened the succession cause by hearing several applications which culminated in calling of witnesses to give evidence and as a result, a ruling was issued which contradicted the findings in the judgment while some rulings even overturned some findings in the judgment.

21. On the rent assessment, counsel submitted that the said issue never emanated from the pleadings and the same was raised after judgment which procedure in unknown in law.

22. The Respondent who appeared in person submitted orally contending that the decisions made by the Hon. Kadhi were regular and the same should be upheld by this court including the wasiyatul waajibah. He however confessed he knew nothing about wasiyatul Wajibah and that he did not ask for it. He insisted that he was entitled to a share, even if it was one room.

23. As per the law, the court was bound to sit with the chief Kadhi for his opinion on matters touching on Islamic law. I am however alive to the fact that his opinion is merely persuasive and advisory on Islamic law and therefore not binding. See Mariam Ahmed Hirsi & another v Halima Issa Osman (2016)eKLR.Having sat with me as an assessor, the chief Kadhi rendered his opinion dated 29th June 2021 as follows;the award of 1/5 to the respondent was without legal basis in Islamic succession fractions and contrary to the quran hence an error;

24. Regarding the award of remedies not prayed for by the Respondent in the lower court, the hon. Chieh kadhi was of the opinion that the respondent having prayed for recognition that his father had made contribution in constructing the house, it was an error for the court to award wasiyatul waajibah which was not one of the prayers. The hon. Chief Kadhi urged the court to expound on jurisprudence and perhaps give the appellant something small although not based on wasiyatul(will) which has no specific statute in kenya governing its operations just like other countries interalia Egypt, sudan, Syria etc.

25. The chief Kadhi quoted Chapter 2 verse 180 and 215 of the Qur’an which provides:

“180 Prescribed for you when death approaches [any] one of you if he leaves wealth [is that he should make] a bequest for the parents and near relatives according to what is acceptable - a duty upon the righteous”…

215They ask you what (things) they should expend, Say, "Whatever charity you expend is for parents and nearest kin, and orphans, and the indigent, and the wayfarer; and whatever charity you perform, then surely Allah is Ever-Knowing of it."

26. Touching on ground No. 4 of the appeal on re-opening succession case No. 28 of 2015 after Judgment, the Chief Kadhi opined that reopening of the succession cause after judgment was an error. On the order for Assessment of rent, the Chief Kadhi opined that it was erroneous as it lacked any factual background.

Analysis and determination

27. I have considered the record of appeal herein, grounds of appeal and submissions by both parties. From the onset, I wish to state that the appeal herein is coached in a way that consolidates two appeals in one but more specifically using the ruling of 9th March 2017 to bring on board an old judgment delivered on 21th August 2015 and which nobody had appealed against for all those years. It is not clear from the record whether leave to appeal out of time was ever sought. However, I will only assume that the court having given direction for hearing of the appeal through written submissions all those preliminaries must have been dealt with. I will therefore proceed on the premise that the appeal is properly before court.

28. The other issue I noted is the confusion caused by the court while conducting proceedings. Several contradicting and unclear directions were made yet the court ignored some and proceeded with the main suit. One such example is the ruling of 5th May 2016 setting aside the entire judgment of 21st August 2015 yet the case could not start afresh and instead the court proceeded on an application dated 29th April 2016 culminating to the ruling of 9th March 2017 the subject of this appeal.

29. The above notwithstanding, it would appear that the Hon. Kadhi did conduct a mean hearing within the main suit by calling witnesses just to determine the extent of improvements made by the appellant. On the basis of this hearing, the court once again re-opened the main suit hence technically setting aside his own orders and therefore reaffirmed the judgment of 21st August, 2015.

30. In the circumstances, and taking into account that the Ruling of 5th May 2016 reviewing the Judgment of 21st August 2015 and setting it aside entirely is still in force, this appeal cannot purport to challenge that judgment which is not there in the first place and has never been reinstated. The consequence of that order is that the case is to start denovo with Riadha being given an opportunity to testify as an interested party and then a judgment written.

31. Based on the order made on 5th May 2016 which has never been set aside, one would conveniently conclude that the main suit is pending hearing with Riadha the enjoined interested party expected to participate.

32. Having held as such albeit all the confusion caused by the trial court, I will not delve on the merits of the appeal arising from the judgment of 21st August 2016 for that will prejudice the outcome likely to arise out of the fresh hearing.

33. I regret that even counsel for the appellant missed this fact even when he admitted in his submissions that the impugned judgment had been overturned and all orders therein set aside. In a nut shell, there is nothing to determine in this appeal in its current form. The only just option is to have this case start denovo before another kadhi other than Abdallah M.Salim also known as Sheik Mwidadi Salim.the Chief Kadhi to allocate the case as directed and hearing be expedited in the interest of justice. The original file be returned to the Kadhi’s court forthwith.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 15TH DAY OF FEBRUARY, 2022

J. N. ONYIEGO

JUDGE