Thuweiba Maka & 3 others v Aisha Juma & another [2016] KECA 628 (KLR)

The confusion was introduced by the appellants' own initial memorandum of appeal. The amended memorandum corrected the error, and the body of the High Court judgment dealt with the correct judgment of 18th July 2007 in Succession Cause No. 147 of 2005. The court found no ambivalence, no confusion, and no prejudice to the appellants, so the ground had no merit.

The court found that although the Kadhi noted the absence of a counter-claim, he nonetheless framed the question of whether the suit property was part of the estate as one of the issues to be decided, both sides adduced evidence on it, and he decided it. The absence of formal pleadings did not preclude determination of an issue raised after fair notice and addressed by the parties.

The court quoted the High Court judgment showing the judge had examined the affidavit of Mashaka Binti Mbwana Salim, its commissioning before a Kadhi, the thumbprint, the consideration, and the death certificate, and concluded there was no basis for interfering with the Kadhi's finding. The Court of Appeal saw no basis for holding otherwise on a second appeal limited to questions of law.

Sections 107 and 108 of the Evidence Act place the burden on the party who would fail if no evidence were given. The appellants asserted the property was part of the estate but tendered no concrete evidence beyond residence; they conceded the grandmother originally owned it. The Kadhi, who saw and heard the witnesses, was not satisfied, and the first appellate court rightly declined to interfere.

The court found the Kadhi had merely cited verses of the Koran that mirror evidential principles, such as the duty of witnesses to tell the truth and that he who asserts must prove. There was therefore no basis for the claim that he decided the case on religious edicts rather than evidence as required by the Kadhis' Court Act.