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ELCStruck OutEnvironment and Land Miscellaneous Application E001 of 2023· [2023] KEELC 21701 (KLR)

Mohammed Athuman v Juma Musa Rajab, Rajab Musa & Mahmoud Musa

Environment and Land Court
21 November 2023
LKL. G. Kimani
2,509 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed it cannot hear appeals from Kadhi's Court succession cases—those go to the High Court.

What this practically means

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Executive summary

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The Applicant, Mohammed Athuman, moved the Environment and Land Court at Kitui by Notice of Motion dated 30th June 2023 seeking leave to appeal out of time against a ruling of Hon. M. Mvudi (Senior Resident Kadhi) delivered on 12th November 2019 in Succession Cause 7 of 2019, in which the Kadhi cancelled a sale agreement over Plot No. 19(37) loc, Market 02/SV/19(37) following the High Court's revocation of a grant, and sought preservation of the property. The Applicant had purchased the plot in 2014 from the then administrator, Juma Rajab. The Respondents filed a preliminary objection dated 17th July 2023 contending that the ELC lacked jurisdiction and that the Applicant lacked locus standi. The court framed two issues: its own jurisdiction and the Applicant's locus standi. Applying Mukisa Biscuit on preliminary objections and the Lillian S doctrine on jurisdiction, the court held that the intended appeal arose from a succession cause within the Kadhi's Court's jurisdiction under Article 170(5); under Rule 86 of the Kadhis' Courts Rules and Section 50(2) of the Law of Succession Act, such appeals lie to the High Court, not the ELC, which also cannot supervise Kadhi's Courts under Article 165. The preliminary objection was upheld, the application struck out, and costs awarded to the Respondents. The locus standi ground was not decided on the merits.

Key legal issues

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01

Jurisdiction of the Environment and Land Court over an intended appeal from a Kadhi's Court succession ruling

Holding

The court lacks jurisdiction; the appeal lies to the High Court under Rule 86 of the Kadhis' Courts Rules and Section 50(2) of the Law of Succession Act.

Reasoning

The Kadhi's Court jurisdiction under Article 170(5) covers Muslim law on personal status, marriage, divorce and inheritance. The ruling sought to be appealed arose in a succession cause. Section 50(2) of the Law of Succession Act and Rule 86 of the Kadhis' Courts Rules route such appeals to the High Court. The ELC's jurisdiction under Article 162(2)(b) does not extend to succession causes, and it cannot supervise Kadhi's Courts under Article 165.

02

Locus standi of the Applicant

Holding

Not determined on the merits; the court declined to proceed once jurisdiction failed.

Reasoning

Having found want of jurisdiction, the court applied the Lillian S principle that a court without jurisdiction cannot take any further step, so the locus standi ground was not adjudicated substantively.

p. 5

Legal principles established

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  • Appeals from a Kadhi's Court in a succession cause lie to the High Court, not the Environment and Land Court.
  • A court without jurisdiction must down its tools and take no further step.

Court orders

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  1. 1.The preliminary objection dated 17th July 2023 has merit and the same is hereby upheld.
  2. 2.The application dated 30th June 2023 is hereby struck out.
  3. 3.Costs are awarded to the Respondents.

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(b)
  • Constitution of Kenya, 2010Article 170(5)
  • Constitution of Kenya, 2010Article 165
  • Constitution of Kenya, 2010Article 40
  • Environment and Land Court ActSection 13
  • Kadhi's Court ActSection 5
  • Kadhis' Courts (Procedure and Practice) RulesRule 86
  • Law of Succession ActSection 50(2)

Cases cited (4)

  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] E.A. 696

    Definition of a preliminary objection as a pure point of law.

  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] eKLR

    Jurisdiction is everything; a court without jurisdiction must down its tools.

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

    Appeals from Kadhi's Court in inheritance matters lie to the High Court, not the ELC.

  • Estate of Gideon Maundu Nzioki, Succession Cause 122 of 2010

    Cited by Applicant: property claims by third parties referred to the Environment and Land Court.

Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act

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, "Mohammed Athuman v Juma Musa Rajab, Rajab Musa & Mahmoud Musa", Case Analysis (2023). Environment and Land Miscellaneous Application E001 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21701/eng@2023-11-21

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