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KadhiDismissedNot stated in the judgment· [2018] KEKC 35 (KLR)

In re Estate of Igge Duale (Deceased) (Succession Cause 29 of 2009) [2018] KEKC 35 (KLR)

Kadhi's Court
4 December 2018
AAABDULHALIM H. ATHMAN
3,396 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan Kadhi's Court refused to undo a 2009 judgment because the applicants knew about the case for nine years but chose not to defend it.

What this practically means

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Executive summary

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The applicants, Zamzam and Amina Yussuf, daughters of the late Halima Igge, moved the Kadhi's Court at Isiolo by Notice of motion dated 10th August 2018 seeking stay of execution of the court's ex parte judgment of 22nd October 2009 and the ruling of 26th July 2018, setting aside of the judgment and consequential orders, and leave to file a defence. The underlying succession petition concerned Plot No. 1301 Bula Pesa (subdivided into Plots 414 and 415, Isiolo), where the court had in 2009 ordered subdivision into five equal shares under Islamic law of inheritance. The applicants contended they were never served with summons and were condemned unheard, so the judgment was irregular and should be set aside as a matter of right. The respondents maintained service was effected on their brother Mohamed Yussuf, that an affidavit of service existed, and that the applicants' father attended court on 14th October 2009, sought and obtained an adjournment specifically to contact Zamzam in Eldoret, so the applicants were aware of the proceedings. The court held that although the applicants were not personally served, their father's attendance and the adjournment for him to contact the applicant showed they were aware of the proceedings since 2009; the judgment was therefore regular. Distinguishing the James Kanyiita Nderitu line of cases on irregular judgments, the court applied the 'sufficient cause' test (Shah v Mbogo; Parimal v Veena) and found the applicants had acted negligently and without bona fides, disqualifying them from discretionary relief, particularly given nine years of delay and the petitioners' advanced age. The application was dismissed with costs.

Key legal issues

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01

Whether the applicants were properly served with or aware of the 2009 proceedings

Holding

The applicants were not personally served with summons, but were aware of the proceedings since 2009 through their father, who attended court and obtained an adjournment to contact the applicant; hence the judgment was regular.

Reasoning

Although Zamzam and Amina were not served with summons, their father appeared on 14th October 2009, sought an adjournment specifically to contact Zamzam in Eldoret, and the matter was adjourned to 21st October 2009 for that purpose. The adjournment's purpose could only be to enable the applicants to participate. Their failure to appear meant the matter properly proceeded. Their brother was served and never participated.

p. 5
02

Whether the 2009 ex parte judgment could be set aside nine years after entry

Holding

No. The judgment was regular and the applicants, aware of the proceedings, failed to show sufficient cause; the discretion to set aside was not available to them.

Reasoning

The court applied the regular/irregular distinction from James Kanyiita Nderitu, and the 'sufficient cause' test from Shah v Mbogo and Parimal v Veena. Since the applicants knew of the dispute and proceedings yet neither entered appearance nor filed a defence, they acted in arrogance or ignorance of legal process, neither qualifying for the discretionary relief, especially given the case's age and the petitioners' advanced age.

p. 6

Legal principles established

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  • The Civil Procedure Act governs procedure in Kadhi's Courts in the absence of rules made under section 8(2) of the Kadhi's Court Act, but the Kadhi's court as a court of equity is not bound to strictly apply the Civil Procedure Rules; rules of natural justice apply.
  • A distinction exists between regular and irregular default judgments; an irregular judgment (no proper service) must be set aside as of right, while a regular judgment may be set aside in the court's discretion upon sufficient cause.
  • To set aside a regular ex parte judgment, the court must be satisfied that the defendant was not properly served or failed to appear due to sufficient cause; sufficient cause excludes negligence, want of bona fides or inactivity.

Court orders

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  1. 1.The Notice of motion dated 10th August 2018 is dismissed with costs to the respondents
Jurisdiction invoked
Section 8(2) of the Kadhi's Court Act (Cap 11) read with the Civil Procedure Act (Cap 21) as applicable procedure in Kadhi's Courts

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, "In re Estate of Igge Duale (Deceased) (Succession Cause 29 of 2009) [2018] KEKC 35 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2018/35/eng@2018-12-04

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