https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12507

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT ISIOLO** **CIVIL APPEAL NO. E003 OF 2025** **SHUKRI WAKO HUKA ……………………......……………… APPELLANT** **VERSUS** **SAIDA ABDULLAHI DALACHA …………………….…RESPONDENT** *(Being an appeal from the Judgment of Hon. Gavava A. Mohamed, Senior Resident Kadhi, in Isiolo Kadhis Court Succession No. E019 of 2021, delivered on 12th October 2023***)** **JUDGMENT** 1. This Appeal arises from a succession dispute in respect of the Estate of the late Abdullahi Ali Dhima alias Abdullahi Dalacha (Deceased). The Trial Kadhi was required to identify the Assets of the deceased, the heirs and to distribute the property in accordance with Islamic law. 2. The matter was heard by way of viva voce evidence, and the trail court delivered in Judgment in which it directed, *inter alia,* that the ownership documents relating to some of the properties owned by the Appellant be revoked, the said properties to be registered in the name of the deceased, and be distributed. The trial court also allocated some property to the former wife of the deceased whom the deceased had divorced. **Memorandum of Appeal.** 1. Being aggrieved by the judgment, the Appellant proffered this Appeal. She has set out the following grounds: *a). THAT the Honourable Kadhi erred in law and fact in exceeding his jurisdiction by ordering revocation of allotment letters and other ownership documents for properties under the name of the appellant and ordering they be registered to the deceased and be shared as properties of the deceased.* *b). THAT the Honourable Kadhi erred in law and fact by entertaining a dispute as to ownership of the suit properties a matter that was outside his jurisdiction sitting as a Probate and Administration court.* *c). THAT the Honourable Kadhi erred in law and fact by distributing the suit properties as properties owned by the deceased despite the evidence that the said properties are owned by the appellant and some are owned by the Appellant's children.* *d). THAT the Honourable Kadhi erred in law and fact by including divorced wives as beneficiaries of the deceased.* *e). THAT the Honourable Kadhi erred in law and fact in giving a contradictory judgement.* *f). THAT the Honourable Kadhi erred in law and fact in giving a judgement that is incapable of implementation for lack of particularity.* *g). THAT the entire finding and judgement of the Honourable Kadhi is bad and is against the law and also against the evidence on record.* 1. The Appeal proceeded by way of written and oral submissions. In compliance with the law governing Appeals from the Kadhi’s court to the high court, I heard this Appeal alongside Hon. Dadacha Ali , the Kadhi in charge of Isiolo Kadhi’s court and Hon. Karanja T, the Kadhi in charge of Garbattula Kadhi’s court ,as Assessors. **Appellant’s Submissions** 1. The Appellant submits that the trial Court lacked jurisdiction to determine disputes over property ownership. Reliance was placed on the decision in ***Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd KLR 1,*** where it was held that: *“Jurisdiction is everything. Without it a court has no power to make one more step... A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.”* 1. Further, it is submitted that a court's jurisdiction must flow from the Constitution or legislation as per the decision in ***Samuel Kamau Macharia & Another vs Kenya Commercial Bank Limited & Others (2012) eKLR.*** The Appellant contends that Article 170(5) of the Constitution limits the Kadhi’s jurisdiction to matters of personal status, marriage, divorce, or inheritance. Therefore, revocation of the allotment letters of properties owned by the Appellant and some of her children was in excess of the Kadhi’s jurisdiction, which jurisdiction is vested with the Environment and Land Court. 2. In support of her assertion, the Appellant has cited the case of ***re Estate of IAAH (Deceased) (Succession Cause E068 of 2022) KEHC 156 (KLR),*** which quoted Mumbi Ngugi J (as she then was) in ***Fatuma Mohamed Shariff v Principal Magistrate Court, Kajiado & 2 others (2014) eKLR***: where the Judge stated: *“...the proper forum for determining such claim as he may have would be the Environment and Land Court in which the constitution vests jurisdiction to hear and determine questions relating to title to land.”* 1. It is further argued that divorced wives are not entitled to inherit from their deceased’s husbands under Islamic law. The Appellant relies on the case ***of re Estate of Hassan Said Barud (Deceased) eKLR and Ramadhan Mustafa -v- Zulfa Ngasia Juma eKLR***, which state that a divorced woman has no right to inherit property from her former husband. 2. Finally, the Appellant faults the trial Court for misapprehending the standard of proof, arguing that it incorrectly required proof of ownership beyond a reasonable doubt instead of on a balance of probabilities as required by Section 107 of the Law of Evidence Act. **Respondent’s Submissions** 1. It is the Respondent’s submission that the primary duty of a probate court is to oversee the transmission of the estate to its beneficiaries by ascertaining assets, liabilities, and the mode of distribution. The Respondent contends that the Hon. Kadhi was merely performing this legal duty when identifying the properties that formed the estate. 2. In support of this position, the Respondent relies on the finding in ***Muriuki Musa Hassan v Rose Kanyua Musa & 4 others eKLR****,* where the court observed: *“The matter before this court is a succession cause and in such cases court deals with issues to determine who are the beneficiaries of the deceased estate, the properties that comprise the deceased’s estate, the mode of distribution to be adopted when distributing the properties that comprise the estate of the deceased to the dependants of the deceased.”* 1. Regarding the Appellant’s challenge to the ownership of specific parcels of land, the Respondent argues that a mere claim to property does not grant an automatic right to stay distribution within a succession cause. It is submitted that the Appellant bore the burden of laying a sufficient basis to exclude the property from the net estate or, alternatively, should have moved to the Environment and Land Court to ascertain ownership. 2. To buttress this argument, the Respondent cites ***In re Estate of Solomon Mwangi Waweru (Deceased) eKLR, in which*** the court held: *“It is my opinion that the fact that the Applicant has laid claim to the estate does not give rise to an automatic right to have the distribution of that property stayed by the succession cause. The Applicant ought to disclose a legitimate claim which needs to be determined by the Environment and Land Court... he has not laid sufficient basis to satisfy this Court that the property did not constitute the net estate of the deceased, which should accordingly, be excluded from this proceedings until the question of title is ascertained. ”* 1. On the issue of evidence, the Respondent points out that the Appellant failed to provide any credible proof of ownership, such as titles or leases, and that the documents she did present were disregarded by the trial court due to numerous errors. The Respondent further reminds this court of the limited scope of intervention available to a first appellate court regarding findings of fact. 2. Reliance is placed on the **Court of Appeal** decision in ***OMS v Principal Magistrate Marsabit (2016)eKLR***, where it was stated: *“This is a first appeal. We are therefore obligated to reconsider the evidence, re-evaluate re-analyze it and make our own conclusions on it bearing in mind that we should be slow in interfering with the findings of fact by the trial Court unless: a. It was based on no evidence; or b. It was based on a misapprehension of the evidence; or c. The Judge was shown demonstrably to have acted on wrong principles in reaching the finding he did.”,* 1. Finally, concerning the award to divorced wives, the Respondent clarifies that the trial court did not designate her as a legal beneficiary. Instead, the award of Kshs. 300,000 and three cows was a “conciliatory gift” (*Mata’a*) mandated by the Holy Quran (Chapter 2, Verse 241) and the Islamic doctrine that “harm must be removed,” particularly as she had suffered neglect for over 30 years. 2. The Respondent concludes that the properties in question belonged to the late Abdullahi Dalacha , that the appeal is frivolous and an abuse of the court process, and it should be dismissed. **Analysis and Determination** 1. This being a first appeal, the duty of this court is what the respondent has correctly pointed out. It is to reconsider and re-evaluate the evidence and draw its own conclusions, while bearing in mind that it did not see or hear the witnesses. It will not lightly interfere with findings of fact unless they were based on no evidence, resulted from a misapprehension of the evidence, or were reached upon wrong principles. (See also ***: Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 and Peters v Sunday Post Ltd [1958] EA 424.*** 2. The court has considered the record, the grounds of appeal, the rival submissions and the Judgment of the trial court. The issues that lend themselves for determination are as follows: 1. Whether the Kadhi’s Court had jurisdiction to determine ownership of the disputed properties and to revoke allotment letters. 2. Whether the monetary award and the conciliatory gift made in favour of a divorced wife were lawful. *Jurisdiction to determine ownership of the disputed properties* 1. Jurisdiction is conferred by the Constitution or statute and cannot be assumed, expanded by judicial craft or conferred by the parties. In ***Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1,*** the Court of Appeal stated that jurisdiction is everything and that a court must down its tools once it finds that it lacks jurisdiction. The Supreme Court restated the same principle in ***Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others*** *(*supra) 2. Article 170(5) of the Constitution and section 5 of the Kadhis’ Courts Act confine the jurisdiction of a Kadhi’s Court to questions of Muslim law relating to personal status, marriage, divorce or inheritance, in proceedings in which all the parties profess the Muslim religion and submit to that jurisdiction. 3. In an inheritance cause, the Kadhi must necessarily identify the deceased’s heirs, liabilities and assets before distribution. That incidental duty, however, does not confer jurisdiction to adjudicate a substantive contest over title between the estate and a person asserting ownership in his or her own right. Such a claimant may or may not be, an heir to the Estate. 4. There is, therefore, an important distinction between identifying property which is admittedly registered in or owned by a deceased person, and determining whether property standing in the name of, or claimed by, a third party should be divested from that person and converted into an estate asset. The former is part of administration and distribution. The latter is a dispute concerning ownership, title or an interest in land. 5. Under Article 162(2)(b) of the Constitution, section 13 of the Environment and Land Court Act and the applicable statutory limits on the jurisdiction of subordinate courts, disputes concerning title to, occupation of, or interests in land fall for determination by the Environment and Land Court or a duly designated magistrate’s court. In ***Fatuma Mohamed Sharif v Principal Magistrate’s Court, Kajiado & 2 Others [2014] eKLR,*** the High Court held that a claim to land said to belong to an estate, but claimed by another person, should be determined in the court constitutionally vested with jurisdiction over title to land. The same approach was adopted in ***re Estate of IAAH (Deceased) [2022] KEKC 156 (KLR).*** 6. The Respondent has argued, quite correctly, that a succession court is not bound to exclude property merely because a bare claim has been made. It may examine the material placed before it to ascertain whether a genuine ownership dispute exists. Once it becomes apparent, however, that resolving the dispute would require the court to cancel or revoke documents held by another person, pronounce on competing roots of ownership, or direct registration in the deceased’s name, the court has crossed from identifying the estate, into adjudicating title. 7. In the present case, the impugned properties were supported by allotment letters, a sale Agreement or other ownership documents in the name of the Appellant and, according to the Appellant, some were in the names of her children. The trial court did not merely preserve those properties pending proof of ownership. It ordered revocation of the allotment letters, directed that the properties be registered in the name of the Deceased, and thereafter treated them as available for distribution. Those orders conclusively determined adverse proprietary rights and affected persons who were asserting interests independent of the estate. 8. An allotment letter may not, by itself, amount to an indefeasible title. Nevertheless, its validity, the identity of the allottee, compliance with the conditions of allotment, competing allocations and any consequential registration are land questions which require evidence and determination by the court possessing jurisdiction over such disputes. The perceived weakness of the Appellant’s documents could not enlarge the Kadhi’s jurisdiction. 9. It follows that the orders revoking the allotment letters; directing registration of the disputed properties in the Deceased’s name and distributing them as estate assets were made without jurisdiction. They are null and cannot be allowed to stand. 10. The parties reserve the right to institute appropriate proceedings before the Environment and Land Court, or another court with competent land jurisdiction, for determination of ownership. Pending such determination, however, the disputed properties must be excluded from distribution. This does not prevent the Kadhi’s Court from completing distribution of assets whose status as property of the Deceased, are undisputed. **The award to the divorced wife** 1. The Appellant’s complaint under this head must be separated into two questions: Firstly, whether a divorced wife is an heir, and whether she may have an independent claim arising from the marriage or divorce. Under Muslim law, inheritance rights crystallise at the death of the deceased. A woman whose divorce had become final before the former husband’s death is not, merely by reason of the former marriage, a surviving wife entitled to a Qur’anic share of his estate. (See: ***In re Estate of Hassan Said Barud (Deceased) [2016] eKLR***.) The trial court could therefore not include a former wife among the heirs unless the evidence brought her within a recognised exception under Muslim law. 2. On the other hand, Mut’ah, is not an inheritance share. It is a payment or conciliatory provision associated with divorce, founded on Muslim law, including Qur’an 2:241. Kenyan courts have recognised that the Kadhi’s Court has jurisdiction to consider such relief in appropriate matrimonial or divorce proceedings. ( See: ***AA v HSS (Family Appeal 43 of 2017) [2021] KEHC 55 (KLR) and HM v SK [2020] KEHC 9236 (KLR).*** The mere fact that a claimant is not an heir does not, by itself, extinguish a properly accrued and proved debt or matrimonial claim against the deceased. 3. That distinction does not validate the award in this cause, however. A claim for mut’ah or special damages must be placed before the court through the pleadings, and the opposing party must be afforded an opportunity to answer it. A monetary claim in the nature of special damages must also be specifically pleaded and strictly proved. A general prayer or an appeal to broad notions of fairness cannot substitute for proof of entitlement and quantum. 4. In the court of Appeal decision in ***MAAA (Suing in his Capacity as Administrator of the Estate of AMAA (Deceased) v FSS [2022] KECA 166 (KLR)***, the court held that a court has no jurisdiction to grant relief which was neither pleaded nor sought and set aside monetary awards, including mut’ah and special-damage-type relief, which had been abandoned or not specifically claimed and proved. 5. In the present case, the trial court described the award of Kshs. 300,000 and three cows as a conciliatory gift made because of the former wife’s alleged neglect for more than thirty years. The judgment does not disclose a pleaded claim upon which that award was founded, the evidential basis for the particular sum and livestock, or a reasoned assessment of the Deceased’s means at the time the asserted obligation arose. Also, a succession court could not convert an unproved moral grievance into a quantified liability payable out of the estate. 6. Accordingly, while Muslim law recognises mut’ah in an appropriate case, the award made here cannot be sustained as an inheritance entitlement, a proved debt or properly adjudicated matrimonial relief. Consequently, the orders granting Kshs. 300,000, three cows and any related special damages to a divorced wife are hereby set aside. 7. In conclusion, the Appeal succeeds and the court proceeds to make the following orders: a). The portion of the judgment of the Kadhi’s Court revoking allotment letters or other ownership documents in the name of the Appellant or any third party, directing registration of the affected properties in the name of the Deceased, and distributing those properties as part of the estate is hereby set aside. b). The disputed properties shall be excluded from distribution unless and until their ownership is determined by the Environment and Land Court or another court of competent jurisdiction. c). The orders awarding Kshs. 300,000, three cows and any special damages or conciliatory gift to a divorced wife are hereby set aside. d). The matter is remitted to the Kadhi’s Court for distribution of the assets proved, or admitted to form part of the Deceased’s estate, in accordance with Muslim law and consistently with this Judgment. e). This being family dispute, each party shall bear their own costs . Dated, signed and delivered at Isiolo this 30th day of July 2026. S. Chirchir Judge. In the presence of : Roba Katelo- Court Assistant Ms. Otieno for the Appellant Mr. Jarso for the Respondent.