Mohamed v Abdalla (Family Appeal 42 of 2019) [2025] KEHC 19301 (KLR) (18 July 2025) (Judgment) Neutral citation: [2025] KEHC 19301 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT MOMBASA FAMILY APPEAL 42 OF 2019 G MUTAI, J JULY 18, 2025 BETWEEN ZUBEDA MOHAMED ............................................................................. APPELLANT AND IBRAHIM ABDALLA .......................................................................... RESPONDENT JUDGMENT 1. In a decision delivered on 25th September 2019, the court below held that the only heirs of the late Abdalla Abdurehman Omar entitled to a share of his estate were the deceased’s daughter and his three sons. The learned Kadhi found that the deceased's estate comprised one-half share in the plot and the house at Mishomoroni. He held that the appellant, a non-beneficiary of the estate, was entitled to Kes 150,000, representing her contribution toward the construction of the house, and that this amount be deducted from the proceeds of the estate's disposal before distribution to the heirs. He further found that the other half of the house and the plot at Mishomoroni belonged to the respondent. 2. Being aggrieved by the decision, the petitioner, in the lower court, filed the instant appeal. In her appeal, she raised 5 grounds. The appellant prayed that the proceedings in the court below be deemed a mistrial, that the appeal be allowed, and that the judgment of the court below be set aside. She also prayed for costs. 3. The respondent was served with the appeal, the subsequent hearing, and the mention notices. Despite being served, he did not appear or file written submissions in opposition to the appeal. The appeal was heard on 28th November 2024 in the presence of the judge and two Kadhis. 4. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19301/eng@2025-07-18 1
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5. In the case of Mbogo and Another v Shah [1968] EA 93, the Court stated:“ …that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.” 6. The duty of the first appellate Court was settled in the case of Selle and another v Associated Motor Board Company and Others [1968]EA 123, where their lordships held as follows:“ .. this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.” 7. The Court must bear in mind that it had neither seen nor heard the witnesses. It is the trial court that observed the demeanor and truthfulness of those witnesses. 8. Further, in the case of Peters vs Sunday Post Limited [1958] EA 424, the court therein rendered itself as follows: “ It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…” 9. Having been sufficiently warned, I will consider the proceedings in the court below and determine whether there are grounds to disturb the decision of the court below. I note that, in her submissions to the Kadhi's Court, the appellant stated that she was divorced by the deceased, though in the petition she indicated that she was the deceased's widow and that she had contributed to acquiring the Swahili House at Mishomoroni, and prayed that her share be allocated to her, or, in the alternative, that she be compensated for her contributions. 10. The respondent said the parcel of Land was jointly purchased by him and the deceased. He, however, conceded that the appellant made a small contribution towards the construction of the house. 11. The Kadhi’s court found that the estate of the deceased was a half share of the plot and also a half share of the house at Mishomoroni. 12. Quran 27:64 provides that: “ ...say produce your proof if you should be truthful." 13. Ibn Abbas (R.A) narrated that the Prophet PBUH said: “ The onus of proof lies on the plaintiff, and the oath is to be taken by the defendant, (Bukhari (4552) {muslim1/1711} and Al Baihagi (10/252).” According to Shariah law, the following are the essentials of Succession: https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19301/eng@2025-07-18 2
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(1) Deceased person (2) Heir (3) Estate 14. In my view, the duty of the succession court is to distribute the estate of a deceased person. To do this, the court must ensure there is an estate before assuming succession jurisdiction. 15. In the case before this court, the appellant averred the estate belonged to her ex-husband, and she has contributed to the acquisition and construction of the same, while the respondent claims he purchased the land together with his late father. 16. The question now is who owns the land and the house? According to the sale agreement provided, the appellant and the respondent purchased it. Curiously, the appellant appears to contest that very fact. 17. According to the sale agreement, the land is registered in the names of Zubeda Mohamed and Ibrahim Abdalla, a fact that is disputed by the appellant. 18. The jurisdiction of the Kadhis Court is provided for in Article170(5) of the Constitution. The same provides that: “ The jurisdiction of a Kadhi's court shall be limited to the determination of questions of Muslim law relating to personal status, marriage, divorce, or inheritance in proceedings in which all parties profess the Muslim religion and submit to the jurisdiction of the Kadhi's Courts". 19. Jurisdiction is a foundational matter. Once a court or tribunal finds that it lacks jurisdiction, it should not take any further steps. This is because, without jurisdiction, the court has no mandate to make one more step. It must down its tools. 20. Primarily, jurisdiction goes to the root of the court, and it is not a mere procedural technicality that can be cured by Article 159(1) of the Constitution of Kenya. In the Supreme Court case of Samuel Macharia and another v Kenya Commercial Bank Limited & others (2012) eKLR, it was held that: “ A court's jurisdiction fiows from either the constitution or legislation or both. Thus, a court of law can only exercise jurisdiction conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.” 21. As observed by this court, it is clear that the dispute arose from the sale agreement. The Environment and Land Court has been granted jurisdiction under Article 162(2)(b) of the Constitution of Kenya and Section 13 of the Environment and Land Court Act to hear and determine all disputes relating to the use and occupation of, and title to, land. Therefore, only the Environment and Land Court and selected magistrates' courts have been clothed with the jurisdiction to hear and determine, and make orders in respect of, land disputes. 22. The Kadhis Court had no jurisdiction to make a determination on the questions regarding the title to land. Its decision on the question of title to land was made without jurisdiction and is thus set aside. To that extent, the appeal is hereby allowed. 23. The matter is remitted back to the Kadhis Court for rehearing and determination. 24. Since this is an appeal emanating from succession proceedings, I make no orders as to costs. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19301/eng@2025-07-18 3
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25. It is so ordered. DATED AND SIGNED IN MOMBASA, THIS 18TH DAY OF JULY 2025. DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS. GREGORY MUTAI JUDGE In the presence of:Mr Gichana, for the Appellant; No appearance for the Respondent; and Arthur – Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19301/eng@2025-07-18 4
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