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ELCStruck OutELC Judicial Review Case No. 4 of 2018· [2019] KEELC 537 (KLR)

Republic v Khamis Ramadhani, Senior Resident Kadhi, Mombasa; Said Ahmed Jafaar (Interested) Ex parte Jaafar Ahmed Jaafar [2019] KEELC 537 (KLR)

Environment and Land Court
17 October 2019
2,545 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court struck out an attempt to overturn a Kadhi's Court inheritance ruling, confirming appeals from such decisions go only to the High Court.

What this practically means

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Executive summary

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The ex-parte applicant, Jaafar Ahmed Jaafar, obtained leave on 23rd March 2018 and filed a substantive notice of motion dated 5th April 2018 seeking an order of certiorari to quash the decision of the Hon. Khamis Ramadhani, Senior Resident Kadhi, delivered on 1st March 2018 in Kadhi's Court Succession Cause No. 72 of 2016 at Mombasa, together with costs. He contended that the Kadhi, in determining the estate of his deceased father, illegally and in excess of jurisdiction dealt with ownership, use and occupation of land belonging to him and his son, revoked titles and sale agreements, and summoned witnesses who had not recorded statements, contrary to Article 50 of the Constitution. The Interested Party, Said Ahmed Jafaar, opposed, arguing the ELC lacked jurisdiction over a Kadhi's Court succession cause, that the decision was judicial not administrative and thus not amenable to judicial review, and that the remedy lay in appeal to the High Court. The court framed three issues but resolved only the jurisdictional one. It found the impugned proceedings were a succession cause concerning inheritance, within the Kadhi's Court jurisdiction under Article 170(5) and Section 5 of the Kadhi's Court Act; appeals lie to the High Court under Section 50(2) of the Law of Succession Act, not the ELC; and the ELC has no supervisory jurisdiction over the Kadhi's Court under Article 165. Having no jurisdiction, the court declined to consider whether the Kadhi exceeded his jurisdiction and struck out the motion with costs to the Interested Party.

Key legal issues

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01

Jurisdiction of the Environment and Land Court over judicial review proceedings targeting a Kadhi's Court decision

Holding

The court lacks jurisdiction because the impugned proceedings were a succession cause; the ELC is not clothed with jurisdiction under Article 162(2) and has no supervisory power over the Kadhi's Court under Article 165.

Reasoning

The dispute before the Kadhi concerned inheritance of the estate of Ahmed Jaafar Mohamed - determination of heirs, shares and distribution - squarely within the Kadhi's Court's jurisdiction under Article 170(5) and Section 5 of the Kadhi's Court Act. Appeals in such matters lie to the High Court under Section 50(2) of the Law of Succession Act, not the ELC. The ex-parte applicant wrongly assumed the ELC has supervisory powers over the Kadhi's Court, and once jurisdiction is absent the court must down its tools.

p. 4
02

Whether the Kadhi's Court acted in excess of jurisdiction

Holding

Not determined, as the court declined to proceed for want of its own jurisdiction.

Reasoning

Although the applicant alleged the Kadhi exceeded jurisdiction by determining ownership, use and occupation of land and revoking titles, the court held it could not examine that question because a court without jurisdiction cannot take any further step in the proceedings.

p. 4

Legal principles established

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  • The Environment and Land Court has no supervisory jurisdiction over the Kadhi's Court, which is not among the courts or tribunals it is clothed to supervise; disputes in a Kadhi's Court succession cause are appealable only to the High Court.
  • A court without jurisdiction must stop at that point and cannot proceed to determine the merits.

Court orders

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  1. 1.Striking out the notice of motion application dated 5th April 2018
  2. 2.Costs of the application to the Interested Party
Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act, Cap 26; Article 162(2) of the Constitution (jurisdiction of the Environment and Land Court)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v Khamis Ramadhani, Senior Resident Kadhi, Mombasa; Said Ahmed Jafaar (Interested) Ex parte Jaafar Ahmed Jaafar [2019] KEELC 537 (KLR)", Case Analysis (2019). ELC Judicial Review Case No. 4 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/537/eng@2019-10-17

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