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KadhiDismissedSuccession Case No. 36 of 2014· [2019] KEKC 32 (KLR)

In re Estate of Hawa Abdi (Deceased) [2019] KEKC 32 (KLR)

Kadhi's Court
8 April 2015
MSMursal M Sizi
528 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Eldoret Kadhi's Court dismissed an attempt to delay a family inheritance case, ruling that ignoring court summons and skipping hearings cannot justify stopping proceedings.

What this practically means

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Executive summary

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Mursal Adan Ali, the applicant/respondent in succession case no. 36 of 2014 before the Eldoret Kadhi's Court, moved the court by notice of motion dated 9th April 2015 seeking certification as urgent, leave to file an application in the High Court, and a stay of the succession proceedings with transfer to the Nairobi Kadhi's Court for fresh hearing. He argued that he and his fellow respondents were never served with summons or proceedings contrary to civil procedure, and that the suit was filed in the wrong court as the matter arose in Kapsabet. He further alleged, quoting Surat Nur verse 25 of the Qur'an, that a judicial officer had intruded into his house, though he disclosed neither the officer nor the place. The court found, per the affidavit of service on record, that the respondents were duly served by a court process server, and noted they had entered appearance and filed a joint defence - conduct inconsistent with their claim of non-service. The court held their actions, including refusal to attend court and a purported notice of withdrawal by the 1st respondent of a case not his, were unprocedural abuses of process that could not ground a stay. The petitioner had sworn an affidavit fearing bias in Eldoret and seeking a neutral forum. The Kadhi dismissed the application, declined leave and stay, and directed the parties to appear on 20th April 2015 for inter-partes hearing, with a right of appeal within 30 days.

Key legal issues

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01

Whether the applicant and fellow respondents were duly served with summons and proceedings

Holding

The court found the respondents were properly served and their claims of non-service were untrue

Reasoning

The court perused the court record and found an affidavit of service on file showing service by a court process server. The respondents had also entered appearance and filed a joint defence, and the applicant admitted spending money travelling to Kisumu to file a defence, demonstrating receipt of summons.

p. 1
02

Whether the succession proceedings should be stayed and transferred to the Nairobi Kadhi's Court

Holding

The application for stay and transfer was dismissed as an attempt to derail the matter

Reasoning

The court found the applicant had no basis for leave or stay. The respondents' procedural missteps - filing a defence instead of a preliminary objection, a notice of withdrawal by the 1st respondent of a case not his, and refusal to attend court - amounted to abuse of process. The petitioner had also expressed fear of not getting justice in Eldoret due to respondents' influence there.

p. 2

Legal principles established

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  • Abuse of court process by parties, including refusal to attend court, cannot justify a stay of proceedings

Court orders

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  1. 1.Application for leave and stay declined
  2. 2.Applicant/respondents advised to appear before the court on 20th April 2015 for inter-partes hearing
  3. 3.R/A 30 days

Authorities

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Legislation

  • Civil Procedure Act/Rulesservice of summons (general reference)
Jurisdiction invoked
Original succession jurisdiction of the Kadhi's Court; application for leave to file in the High Court and stay/transfer of proceedings

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 Hawa Abdi (Deceased) [2019] KEKC 32 (KLR)", Case Analysis (2015). Succession Case No. 36 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2019/32/eng@2019-05-27

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