Aisha Brek v The Principal Kadhi – Malindi & 2 others
The bottom line
#Kenya's Court of Appeal confirmed that you cannot use judicial review to overturn a judge's decision—you must appeal, even when the lower court got the law wrong.
What this practically means
#Executive summary
#Key legal issues
#Whether judicial review was the appropriate remedy against the Kadhi's Court ruling excluding Malindi Plot No. 3659 from the deceased's estate
It was not. Judicial review interrogates the decision-making process, not the merits, and a party aggrieved by a judicial pronouncement must follow the appellate procedure. The Kadhi acted ultra vires by reopening an issue settled by the High Court, but the remedy was an appeal.
The Court found the Kadhi erred in entertaining a matter already settled twice by the High Court, breaching stare decisis. However, the dispute was private-law in nature and the Kadhi's decision was judicial, not administrative. Judicial review is exceptional, concerned with process not merits, and cannot substitute the reviewing court's view for that of the decision-maker. An appeal, not certiorari, was the proper channel to test the correctness of the decision.
Whether the Senior Principal Kadhi's ruling of 5th May 2021 violated the doctrine of stare decisis
Yes. The Kadhi improperly pronounced himself on an issue already settled by the High Court on two occasions and was bound by those decisions.
The High Court had, through Korir, J. and Njoki Mwangi, J., determined that Kwa Chocha Villa formed part of the deceased's estate and directed distribution in accordance with Islamic Law. The Kadhi's only task was to follow those directions. His attempt to correct a perceived wrong through additional proceedings exceeded his jurisdiction and made his decision amenable to challenge.
Legal principles established
#- A subordinate court is bound by the decision of a superior court; it cannot reopen or sit on appeal over an issue already settled by the High Court, per the doctrine of stare decisis.
- A judicial decision, being private-law and judicial rather than administrative in nature, must be challenged by way of appeal, not judicial review; a wrong decision made within the law is seldom ultra vires so as to attract prerogative writs.
- On a second appeal, the Court of Appeal confines itself to matters of law only.
Court orders
#- 1.The appeal is dismissed
- 2.The Ruling of Githinji, J. dated and delivered on 26th October 2022 is upheld
- 3.Each party shall bear their own costs of the appeal
- On appeal from
- High Court of Kenya at Malindi
- Malindi Judicial Review Misc. Application No. 007 of 2021
- Jurisdiction invoked
- Section 72(1) of the Civil Procedure Act (second appeal on matters of law only)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Aisha Brek v The Principal Kadhi – Malindi & 2 others", Case Analysis (2026). Second Appeal against Malindi Judicial Review Misc. Application No. 007 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/55/eng@2026-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.