[2022] KEHC 10388 (KLR)

Said v Said & 4 others (Civil Appeal 80 of 2019) [2022] KEHC 10388 (KLR) (13 May 2022) (Ruling)

Neutral citation: [2022] KEHC 10388 (KLR)

Republic of Kenya

In the High Court at Kakamega

Civil Appeal 80 of 2019

WM Musyoka, J

May 13, 2022

From judgment and decree of Hon. Ally W. Bakari, Resident Kadhi, in Vihiga KCSC No. 1 of 2019, of 4th July 2019

Between

Mariam Musa Said

Appellant

and

Musa Chepkoech Said

1st Respondent

Muhammed Said

2nd Respondent

Ibrahim Said

3rd Respondent

Miraj Mustafa

4th Respondent

Swaleh Mustafa

5th Respondent

Ruling

1. There are two applications for simultaneous determination, dated 3rd March 2020 and 18th May 2020.

2. The Motion dated 3rd March 2020 seeks stay of consent orders that had been issued on 26th February 2020 in the appeal herein and that in Kakamega HCCC No. 69 of 2019, and for the appeals to be heard on their merits. There is also a prayer for consolidation of the instant appeal with Kakamega HCCC No. 69 of 2019. It is brought at the instance of Miraj Mustafa and Swaleh Mustafa, who I shall refer hereto after as the 4th and 5th respondents. They are the holders of the decree of the court in Vihiga KCSC No. 1 of 2019, which is the subject of the appeal. They accuse the appellant of colluding with the 1st, 2nd and 3rd respondents in the appeals to dispose of the appeals herein so as to dismiss the decision in Vihiga KCSC No. 1 of 2019, to their detriment, yet they are the rightful beneficiaries of the estate. They aver that they do not consent to the terms of the consent order.

3. The appellant responded to the application by way of her replying affidavit, sworn on 5th May 2020. She avers that she was the registered proprietor of Nandi/Kamobo/5275 and 4393, the same having been transferred to her by her late mother, Amina Chepkemboi Mwalimu, and, therefore, the said property was not available for distribution in Vihiga KCSC No. 1 of 2019. She avers that the Vihiga court did not have territorial jurisdiction to handle the succession to the said assets, for the cause ought to have been filed at the Eldoret Kadhi’s court. She further stated that the said assets were subject to suits pending at the Eldoret law courts, being Eldoret ELC Nos. 39 of 2016 and 108 of 2015, which makes the matter sub judice. It further avers that the matter if res judicata in view of the determination on jurisdiction in Kisumu KCSC No. 16 of 2018. She avers that she filed the instant appeals after the court in Vihiga KCSC No. 1 of 2019 nullified her titles in Nandi/Kamobo/5275 and 4393. She avers to attempts to have the matter of the lands in question being placed before the Kadhi’s courts at Kisumu and Lodwar, without success. She makes various allegations, relating to collusion with the respondents against the Kadhi who presided over Vihiga KCSC No. 1 of 2019. She avers that the 1st respondent had been cheated that the said lands could be sold to him, hence the proceedings in Vihiga KCSC No. 1 of 2019 and elsewhere, he approached her with a view to compromise the appeals. She asserts that the decree given in Vihiga KCSC No. 1 of 2019 was made without jurisdiction, and, therefore, it was unlawful. She further argues that the Kadhi’s court had no jurisdiction to revoke titles. The bulk of the affidavit dwells on substantive matters that are not for consideration at this stage.

4. The second Motion, dated 18th May 2020, is by the appellant, Mariam Musa Said. She would like the 4th and 5th respondents to furnish security for costs, on terms that they should deposit their passports in court, deposit title deeds of any property they own in Kenya, and deposit Kshs. 600, 000. 00 in court being the approximate costs of the appeals herein. It is said that the 4th and 5th respondents were persons of no known local or physical address, and their properties within the country were unknown, and that they were unlikely to settle any costs to be awarded by the court. They are said to have failed to settle costs awarded in another suit.

5. The 4th and 5th respondents swore an affidavit in response, on 10th November 2020, to aver that the 1st, 2nd and 3rd respondents entered into a consent, to dispose of the appeals, without involving them. They submit that the appellant should not benefit from her own irregularities.

6. Directions were given on 26th October 2020, for disposal of the appeal by way of written submissions. I have seen on record written submissions by both sides. I have read through them and noted the arguments made in them.

7. The two applications are fairly straightforward. I shall start with that dated 3rd March 2020. What the applicants are saying is that the appellant entered into a consent to dispose of the appeals with a section of the respondents to the appeals, but did not include the applicants, who are the key stake holders in the decree the subject of the appeal, and as such consent was to their detriment. I note that the appellant, in her lengthy replying affidavit, does not address that issue, whether or not she involved the 4th and 5th respondents in her consent to dispose of the appeals in the manner that they were disposed of.

8. I have perused the record. I note that the applicants are named in both appeals as respondents, and the appellant was seeking that the appeals be allowed as against the 1st and 2nd appellants, and not the rest of the appellants, but I was informed that the orders appeals as against the rest of the respondents were not tenable, as the appeals were essentially against the 1st and 2nd respondents. Whereas the 1st, 2nd and 3rd respondents were in court the 4th and 5th respondents were not. I note that the allowing of the appeal meant that the judgment or decree of the Kadhi in Vihiga KCSC No. 1 of 2019 was set aside and the said succession cause dismissed. I have perused the judgment in Vihiga KCSC No. 1 of 2019, and noted that, at order 4, the court awarded 22. 22% of Nandi/Kamobo/5275 each to the 4th and 5th respondents, and, therefore, the appeal was not going to affect only the 1st and 2nd respondents. The court was clearly misled, to the detriment of the two respondents. There is a clear case for the setting aside of the orders of 26th February 2020. The appeals against the 4th and 5th respondents cannot be determined in isolation, and, therefore, the appeals against the 1st, 2nd and 3rd respondents should all be reinstated.

9. In her response to that application, the appellant raised a lot of substantive issues, relating to jurisdiction, res judicata, sub judice, bias, among others. I cannot advert to those at this stage. The application before me relates to whether or not the consent orders were properly entered into, to the extent that the 4th and 5th respondents were not involved, and were not even in court. Whether there was jurisdiction for the Kadhi to handle the matter or he was biased or his orders were res judicata or the matter was sub judice, etc., are matters that ought to be canvassed at the hearing of the appeals.

10. On the second application, for deposit of security for costs, I would say that since I have found that the 4th and 5th respondents, have a good case, for the setting aside of the consents orders, to pave way for the hearing of the appeal on its merits, I feel that the application for provision of security for costs is not merited. In any case, these are family proceedings, and courts eschew manoeuvres that do not add value to determination of the key issues in controversy. It has not been demonstrated that the said respondents are not residents of Kenya, or were persons of no fixed abode, or were a flight risk, or were men of straw, to warrant the making of such drastic orders against them.

11. In the end, I allow the Motion dated 3rd March 2020, in its entirety, but with no orders as to costs. As the decision challenged was of a subordinate court sitting at Vihiga, and the High Court now has a station at Vihiga, I direct that the appeal, as consolidated with Kakamega HCCA No. 69 of 2019, be transferred to the High Court of Kenya at Vihiga for final disposal. The application dated 18th May 2020 is dismissed, with no order as to costs. It is so ordered.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA ON THIS 13thDAY OF May 2022WM MUSYOKAJUDGEErick Zalo, Court AssistantMr. Sego, instructed by KK arap Sego & Co., Advocates, for the appellant.Ms. Mukhwana, instructed by Maobe Mukhwana & Co., Advocates, for the 4thand 5threspondents.