Y K ARA P B v S H & 2 others [2015] KEKC 39 (KLR)
The bottom line
#A Kenyan Kadhi's Court dismissed a family's succession claim because the applicant missed the hearing, showing attendance at hearings is essential.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether HM died a Muslim in 2008 survived by his wife, two sons, one daughter and one step-son, and how his estate should devolve
- 2.Whether the estate of ADS, who died intestate in June 2012, should be distributed among her four beneficiaries as sought by the applicant
- 3.Whether the application should be dismissed for the applicant's non-attendance at the hearing
Key legal issues
#Consequence of the applicant's non-attendance at the hearing
The application had to be dismissed as the applicant, though served, failed to attend, and Order 12 Rule 3 of the Civil Procedure Rules leaves the court no discretion
The respondents attended and did not admit any part of the claim. Order 12 Rule 3 mandates dismissal where only the defendant/respondent attends and admits no part of the claim. The court held the rule is in mandatory terms, that an application is a 'suit' within the meaning of the Rules, and that the only course open was non-departure from the words of the law. The court accordingly dismissed the application with costs.
The applicant's claimed succession rights in the estates of HM and ADS
No findings were made on the merits; the unchallenged evidence of the respondents (who testified ex-parte) was to the effect that the applicant has no blood relation with HM, ADS died leaving no property, and the Kenyan property belonged to the 3rd Respondent
The respondents testified that HM had only one Kenyan property which he had bequeathed to the 3rd Respondent by an instrument of 29th June 1974, that the Rose Avenue property belonged to the 2nd Respondent, and that the only property of the deceased lies in Zanzibar outside the court's jurisdiction. This evidence was not challenged as the applicant did not adduce evidence in rebuttal, but the application was dismissed on procedural grounds rather than decided on the merits.
Legal principles established
#- Where a suit or application is fixed for hearing and the plaintiff or applicant fails to attend after being notified, the suit or application must be dismissed unless there are compelling reasons which must be recorded; the term 'shall' takes away the court's discretion
Court orders
#- 1.The Applicant's application is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Kadhi's Court Act Sec 15 Cap 11 and Law of Succession Act Sec 49(2) Cap 160
Relief refused
#Declaration that HM died a Muslim in 2008 survived by his wife, two sons, one daughter and one step-son, and that his three unencumbered properties were subdivided as claimed
The application was dismissed for the applicant's non-attendance at the hearing; the respondents denied the applicant had any blood relation with HM and asserted the Kenyan property had been bequeathed to the 3rd Respondent and that the only property of the deceased is in Zanzibar, beyond the court's jurisdiction
Declaration that ADS died intestate in June 2012 and her estate be distributed among the four named beneficiaries
Dismissed for the applicant's failure to attend the hearing; the respondent testified ADS died without leaving any property
Costs
The application was dismissed with costs to the respondents.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the premises given above I dismiss the Applicant's application with costs.
The law therefore presupposes that once a matter has been fixed for hearing unless there is a compelling reasons which must be recorded, if plaintiff or applicant fails to attend after having been notified, the suit or application MUST be dismissed - unless there is a compelling reasons which MUST be recorded.
There is only one course open to this court that is, a verbis legis non est recedendum, from the words of law there must be no departure.
Issues in the judgment
#Internal date contradiction: the originating summons is dated 19th November 2015, yet the record describes a mention notice served on 23rd July 2015 and a trial commencing on 10th August 2015, and judgment was delivered on 14th August 2015
The judgment inconsistently refers to the party styled 'applicant' as 'petitioner' in the service narrative
The return of service narrative states the process server served 'the applicant' whereas the trial record states it was the applicant who failed to appear; the passage is internally confusing as to who was served
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Y K ARA P B v S H & 2 others [2015] KEKC 39 (KLR)", Case Analysis (2015). Succession Cause No. 16 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2015/39/eng@2015-08-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.