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ELCPartially AllowedMiscellaneous Application No. 90 of 2020 (JR)· [2022] KEELC 371 (KLR)

Republic v Principal Kadhi, Mombasa Ex-parties Alibhai Adamali Dar & 2 others; Murtaza Turabali Patel (Interested Party) [2022] KEELC 371 (KLR)

Environment and Land Court
4 April 2022
LNL. L. Naikuni
6,747 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~27 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Ex-parte Applicants sought orders of certiorari to quash and prohibition against further hearing of a Notice of Motion by the Interested Party in Mombasa Kadhi's Court Succession Cause No. 41 of 2019, contending that the Principal Kadhi lacked jurisdiction over the use, occupation and title to land parcel Mombasa/Block XXXII/27, having issued injunctions on 25th November 2020 in excess of the jurisdiction conferred by Article 170(5) of the Constitution and Section 5 of the Kadhis' Court Act. The Interested Party opposed, arguing the application was premature since the Kadhi's cause was unconcluded, the parties being Muslim an appeal lay to the High Court, and simultaneously filed his own Notice of Motion dated 14th July 2021 seeking temporary injunctions and maintenance of status quo on the suit property. The Respondent filed no submissions. The court, applying Owners of Motor Vessel 'Lilian S' and Samuel Kamau Macharia, held that jurisdiction flows only from the Constitution or statute, cannot be conferred by consent, and that the Kadhi's court's jurisdiction is limited to Muslim personal law - inheritance and distribution of estates - with no remit over land ownership, use or occupation, which vests in the Environment and Land Court under Article 162(2)(b) and Section 13 of the ELC Act. The Kadhi's orders were therefore ultra vires, and certiorari and prohibition issued. The Interested Party's motion failed: no prima facie case was proved, the injunction was sought within judicial review proceedings without an underlying plaint, and orders were sought against non-parties. Costs were granted to the Ex-parte Applicants.

Key legal issues

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01

Jurisdiction of the Kadhi's court over land disputes

Holding

The Kadhi's court had no jurisdiction to make orders touching on ownership, use and occupation of land; its jurisdiction is confined to Muslim personal law including inheritance and distribution of estates

Reasoning

Article 170(5) of the Constitution and Section 5 of the Kadhis' Court Act confine the Kadhi's court to questions of Muslim law relating to personal status, marriage, divorce or inheritance. Jurisdiction over use, occupation and title to land is vested in the Environment and Land Court by Article 162(2)(b) and Section 13 of the ELC Act. Jurisdiction flows only from the Constitution or statute and cannot be conferred by consent. Orders made in excess of jurisdiction are ultra vires and a nullity.

p. 6
02

Availability of certiorari and prohibition

Holding

Having found the Kadhi's court acted without jurisdiction, the Ex-parte Applicants were entitled to both prerogative orders as prayed

Reasoning

Certiorari brings up and quashes decisions made without or in excess of jurisdiction, while prohibition restrains an inferior tribunal from continuing to exercise jurisdiction it does not possess. The two remedies frequently go hand in hand; certiorari looks to the past and prohibition to the future. Since the Principal Kadhi's orders of 25th November 2020 were ultra vires, both writs issued.

p. 6
03

Interested Party's application for temporary injunction

Holding

Dismissed for failure to establish a prima facie case with a probability of success

Reasoning

The Interested Party made allegations of interference with the suit property and land registry records but produced no documentary evidence such as searches, title deeds or photographs. Under Sections 107 and 120 of the Evidence Act, he who alleges must prove. The injunction was also sought in judicial review proceedings without an underlying plaint, and orders were sought against non-parties. The Giella conditions are sequential, so failure on the first limb ends the enquiry.

p. 7

Legal principles established

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  • The Kadhi's court's jurisdiction is limited to questions of Muslim law relating to personal status, marriage, divorce or inheritance, and does not extend to disputes over ownership, use and occupation of land
  • Parties cannot consent to confer jurisdiction on a court that has none
  • A court without jurisdiction must down its tools
  • The conditions for an interlocutory injunction are applied sequentially, so failure on the first ground (prima facie case) is dispositive

Court orders

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  1. 1.Judicial review order of Certiorari quashing all proceedings and orders made by the Principal Kadhi, Mombasa in Mombasa Kadhi's Court Succession Cause No. 41 of 2019 in so far as those proceedings touch on the use and occupation of and title to Mombasa/Block XXXII/27
  2. 2.Judicial review order of Prohibition forbidding the Principal Kadhi, Mombasa from hearing or continuing to hear the Notice of Motion by Murtaza Turabali Patel dated 24th November 2020 in Succession Cause No. 41 of 2019 and from hearing any application concerning the use and occupation of and title to Mombasa/Block XXXII/27
  3. 3.Dismissal of the Interested Party's Notice of Motion application dated 14th July 2021
  4. 4.Costs of the application/suit granted to the Ex-parte Applicants

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 156
  • Constitution of Kenya, 2010Article 159(1)
  • Constitution of Kenya, 2010Article 162(2)(b)
  • Constitution of Kenya, 2010Article 165(6), (7)
  • Constitution of Kenya, 2010Article 170 (including Article 170(5))
  • Environment and Land Court Act, No. 19 of 2011Sections 13, 13(1), 16 and 19
  • Kadhis' Court ActSection 5
  • Law Reform Act, Cap. 26Sections 8 and 9
  • Fair Administrative Action Act(no provision stated)
  • Civil Procedure Act, Cap. 21Sections 1A, 1B, 3, 3A and 63(e)
  • Civil Procedure Rules, 2010Order 53 Rules 1-7; Order 40 Rules 1, 2, 3, 4; Order 51 Rule 1; Order 2 Rule 6
  • Land Registration Act, No. 3 of 2012Sections 24, 25 and 101
  • Land Act, No. 6 of 2012Section 150
  • Evidence Act, Cap. 80Sections 107 and 120

Cases cited (17)

  • Owners of Motor Vessel "Lilian S" v Caltex Oil (Kenya) Limited
    (1989) eKLR
  • Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others
    (2012) eKLR
  • Republic v Kadhi's Court at Wajir & Another Ex-Parte Abdi Koriyoy Gabow
    (2019) eKLR
  • Re Bivac International SA (Bureau Veritas)
    2005 2EA 43
  • Republic v Kenya Revenue Authority Ex-Parte Yaya Towers Limited
    (2008) eKLR
  • Camnock Chase District Council v Kelly
    (1978)
  • Farmers Bus Services v Transport Licensing Appeals Tribunal
    (1975) E.A. 523
  • Pharmaceutical Manufacturers Association of South Africa in re Ex-Parte President of Republic of South Africa
    2000 S.A. 674 CC
  • Republic v Speaker of the Senate and Another Ex-Parte Afrison Export Import Limited
    2018 eKLR
  • Republic v Stanley Mambo Amuti
    2018 eKLR
  • Kenya National Examination Council v Republic (Ex-Parte Geoffrey Gathenji & Another)
    Nairobi Civil Appeal No. 266 of 1996
  • Giella v Cassman Brown
    (1973) E.A. 358
  • Mrao v First American Bank of Kenya Ltd & 2 Others
    (2003) eKLR 125
  • Kenya Horticultural Exporters 1977 Limited v Pape
    1986 KLR 705
  • Nguruman Limited v Jan Bonde Neilson & 2 Others
    2014 eKLR
  • Kenya Commercial Finance Co. Limited v Afraha Education Society
    (2001) 1 E.A. 86
  • Hassan Huri v Abdulrazak Huri Ibrahim
    Court of Appeal (Mombasa) No. 8 of 2015
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act; Sections 8 and 9 of the Law Reform Act; Order 53 of the Civil Procedure Rules, 2010

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 Principal Kadhi, Mombasa Ex-parties Alibhai Adamali Dar & 2 others; Murtaza Turabali Patel (Interested Party) [2022] KEELC 371 (KLR)", Case Analysis (2022). Miscellaneous Application No. 90 of 2020 (JR). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/371/eng@2022-04-04

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