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Court of AppealDismissedCivil Application No. 24 of 2013· [2014] KECA 687 (KLR)

Genevieve Bertrand v Mohamed Athman Maawiya & another [2014] KECA 687 (KLR)

Court of Appeal
20 March 2014
HOH.M. OkwenguASAsike-MakhandiaWilliam OukoW. Ouko
2,500 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed Kadhi's Courts only handle disputes where all parties are Muslim and the issue involves Muslim personal law.

What this practically means

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Executive summary

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This was a second appeal to the Court of Appeal at Malindi against the decision of Meoli J in the High Court at Malindi (Civil Appeal No. 37 of 2012), who on 8th May 2013 summarily rejected the appellant's first appeal under section 79B of the Civil Procedure Act. The underlying suit, filed in the Kadhi's Court at Lamu in 2002, sought declarations that the respondents were capable under Islamic law and the Registered Land Act to transfer a deceased person's house to the appellant and to distribute proceeds among beneficiaries. The first respondent admitted the Kadhi's jurisdiction, but a later Kadhi, delivering judgment on 3rd October 2012, held that the appellant, not being a Muslim, could not maintain the suit and referred the matter to the Principal Magistrate's Court. The Court of Appeal identified two issues: whether the High Court erred in summarily rejecting the appeal, and whether the Kadhi's Court had jurisdiction. The court held that Kadhi's Court jurisdiction under Article 170(5) of the Constitution and section 5 of the Kadhi's Court Act depends on the subject matter, the parties' Muslim faith, and submission to jurisdiction; parties cannot confer jurisdiction by consent. Since the appellant was a non-Muslim and her claim was contractual, the Kadhi's Court had no jurisdiction, and the High Court properly exercised its section 79B power because the appeal was an abuse of process. The appeal was dismissed with costs, affirming the decision of the High Court.

Key legal issues

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01

Whether the High Court erred in summarily rejecting the appeal under section 79B of the Civil Procedure Act

Holding

The High Court did not err; the rejection was justified because the appeal raised no arguable ground, the jurisdictional facts being clear and uncontested, making the appeal an abuse of process.

Reasoning

Section 79B permits summary rejection where there is no sufficient ground for interfering with the decree. Precedents require sparing exercise of the power. Here the jurisdictional issue was one of mixed law and fact, but the facts were clear and uncontested: the appellant was not a Muslim and her claim was contractual, not within Kadhi's jurisdiction. The appeal was academic and abusive, so summary rejection was proper.

p. 4
02

Whether the Kadhi's Court had jurisdiction over the appellant's claim

Holding

The Kadhi's Court lacked jurisdiction because the appellant did not profess the Muslim faith and her claim was founded on a contract of sale of a house, not on Muslim law of personal status, marriage, divorce or inheritance.

Reasoning

Kadhi's Court jurisdiction under Article 170(5) of the Constitution and section 5 of the Kadhi's Court Act requires that all parties profess the Muslim religion and that the dispute concern Muslim law of personal status, marriage, divorce or inheritance. Although the first respondent admitted jurisdiction, parties cannot confer jurisdiction by consent. The claim was contractual and the appellant was a non-Muslim, so the court could not entertain it.

p. 4

Legal principles established

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  • The power of summary rejection of an appeal under section 79B of the Civil Procedure Act must be exercised sparingly and only where it is apparent the appeal amounts to an abuse of the court process.
  • Jurisdiction of the Kadhi's Court is determined by three factors: the subject matter of the claim, the parties' Muslim faith, and their submission to the jurisdiction of the Kadhi's Court.
  • Parties cannot by mutual consent confer jurisdiction upon a court that lacks jurisdiction.

Court orders

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  1. 1.Appeal dismissed with costs

Authorities

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Legislation

  • Civil Procedure Actsection 79B
  • Civil Procedure Actsection 79C
  • Kadhi's Court Act Cap 11section 5
  • Constitution of Kenya (retired)section 66
  • Constitution of Kenya, 2010Article 169
  • Constitution of Kenya, 2010Article 170(5)
  • Registered Land Act
  • Former Civil Procedure RulesOrder XVI Rule 2(1)

Cases cited (6)

  • Orero vs Oseko
    [1984] KLR 238
  • Mashere vs Walusala
    [1986] KLR 503
  • Soor vs. Mohamed
    [2006] 1 EA 381
  • The owner of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • Allarakhia v Aga Khan
    1969 EA 613
  • Samuel K. Macharia & Another v Kenya Commercial Bank & 2 Others
    Supreme Court Civil Appeal No. 2 of 2011
On appeal from
High Court at Malindi
Civil Appeal No. 37 of 2012
Jurisdiction invoked
First appellate jurisdiction under the Civil Procedure Act; appeal against summary rejection under section 79B of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (11)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Genevieve Bertrand v Mohamed Athman Maawiya & another [2014] KECA 687 (KLR)", Case Analysis (2014). Civil Application No. 24 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/687/eng@2014-03-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.