[2024] KEHC 6927 (KLR)

Republic v Mwemba & another; Kindoro (Exparte Applicant) (Miscellaneous Application E001 of 2022) [2024] KEHC 6927 (KLR) (9 April 2024) (Ruling)

Neutral citation: [2024] KEHC 6927 (KLR)

Republic of Kenya

In the High Court at Voi

Miscellaneous Application E001 of 2022

GMA Dulu, J

April 9, 2024

IN THE MATTER OF THE LAW OF SUCCESSION OF THE LAW OF SUCCESSION ACT CAP 160 LAWS OF KENYA, SECTION 2(1) AND (3) AND IN THE MATTER OF THE APPLICATION FOR ORDERS OF CERTIORARI AND PROHIBITION

Between

Republic

Applicant

and

Halima Mwemba

1st Respondent

Senior Principal Kadhi (Voi Court)

2nd Respondent

and

Mariam Bakari Kindoro

Exparte Applicant

Ruling

1. Before me is a Notice of Motion dated 2nd June 2023 filed by the ex-parte applicant Mariam Bakari Kindoro through counsel Ochieng Eddie Vincent & Company Advocates under Order 53 Rules 1, 2, 3 & 4 of the Civil Procedure Rules and Section 8 and 9 of the Law Reform Act (Cap.26) of the Laws of Kenya.

2. The application seeks the following orders:-1. An order of Certiorarito remove to this court and quash the decision of the 2nd respondent recorded in court on 22nd February 2016 and proceedings thereof.2. An order of prohibition to revive into this court and prohibit the 1st and 2nd respondent from proceedings to attach any properties of the applicant in execution of any proceeding on decree issued by Voi Kadhi Succession Case No. 7 of 2015. 3.The application has grounds on the face of the Notice of Motion that Succession Cause No. 7 of 2015 at Voi Kadhi’s Court was defective and ought to be dismissed; that the ex-parte applicant was not a party therein but the Kadhi summoned her without 1st respondent making an application to enjoin her a lay person to influence the applicant to compromise by filing a consent; that the 2nd respondent failed to strike out Voi Kadhi’s Succession No. 7 of 2015 for lack of proper cause; that the applicant was unaware of the implication of the consent; that there was an apparent error in the court proceedings in the lower court which need to be corrected; that the matter was subjudice as there were other cases pending that is Voi Kadhi’s Misc. Application No. 1 of 2015 and Voi Kadhi’s Case No. 5 of 2015 on the same subject matter and relating to same parties; that the 1st respondent had also filed Voi Succession Case No. 4 of 2016 and Mombasa Kadhi Case No. 162 of 2015 which made the applicant not file a defence and obtain orders in Voi Kadhi’s Succession No. 7 of 2015. 4.The application was grounded on the Statutory Statementand a supporting affidavit sworn by the ex-parte applicant. I note that the affidavit refers to Voi Kadhi’s Case No. 1 of 2015, No. 5 of 2015, and No. 4 of 2016 as well as Mombasa Chief Kadhi Case No. 162 of 2015. 5.The application is opposed through a replying affidavit sworn by Halima Mwemba 1st respondent on 14th September 2023 in which it was deponed that all the cases mentioned by the ex-parte applicant were heard before the Kadhi at Voi and that the 1st respondent requested the Kadhi to have them agree on the way forward and nobody raised any issue; that in February 2016 the 1st respondent and a brother Juma Mwanjala Zua agreed that the ex-parte applicant compensates the 1st respondent Kshs. 2,500,000/= and that the said brother would compensate the 1st respondent Kshs. 3,000,000/= from their late father’s estate and a consent was recorded in court; that the applicant now comes to court in these judicial review proceedings merely to escape what she had consented to; and that the 1st respondent did not influence the Kadhi in any way in recording the consent.6. The application was canvassed through written submissions. In this regard, I have perused and considered the submissions filed by Ochieng Eddie Vincent & Company Advocates for the applicant, as well as the submissions filed by Daniel Orenge & Company Advocates for the 1st respondent. The 2nd respondent (Senior Principal Kadhi Voi) did not respond to the application or file written submissions. Both counsel relied upon decided court cases.7. Having considered the application, documents filed and submissions of counsel for the ex-parte applicant as well as the submissions of the counsel for the 1st respondent, in my view, this application cannot succeed and is for striking out.8. The first reason why this application is for striking out is that though the applicant has complained about proceedings and orders made in Voi Kadhi Succession Case No. 7 of 2015 she has neither filed copy or extract of those proceedings, nor the consent order complained of. A purported consent order was instead filed by the 1st respondent in her replying affidavit.9. In my view, since these judicial review proceedings were brought by the ex-parte applicant, she was duty bound to file the documents to rely upon, and her failing to file the proceedings and consent complained of and instead filing a Notice of Motion dated 26th October 2022 for execution in Voi Kadhi’s Case No. 07 of 2015, means that there is nothing for this court to consider in order to issue the certiorari and prohibition orders sought.10. The second reason why this application is for striking out, is that the ex-parte applicant has not raised or indicated that she raised the issue of irregular proceedings in the Kadhi’s Court, though she readily admits in this court that she was a party to the consent. In my view, she should have gone back to that Kadhi’s court to complain if she had any complaint, and sought review their before approaching another court for review of the recorded consent.11. Thirdly, the law under Section 65 of the Civil Procedure Act, a person aggrieved by the decision of the Kadhi’s Court can appeal to the High Court. The applicant has neither appealed, nor stated in the present application why she has not so appealed.12. This application for judicial review orders in my view, is an attempt to divert attention from execution proceedings in another court, which cannot be accepted by this court, as the ex-parte applicant can be heard in that execution court, and if dissatisfied, an appeal preferred.13. I thus find that this application cannot stand and is for striking out. I strike out the application, but as this is a family matter, the parties will bear their respective costs of the application.

DATED, SIGNED AND DELIVERED THIS 9TH DAY OF APRIL 2024 AT VOI IN OPEN COURT.GEORGE DULUJUDGEIn the presence of:-Alfred – Court AssistantMr. Muganda for ex-parte applicantMs. Shamsa for 1st respondent