Jsm v Bbt

5. In his submissions, the appellant argued that the trial Kadhi erred in both law and fact by making a decision that contradicts the weight of evidence, including oral and documented evidence. It was claimed that the respondent had a limited role in acquiring and developing both the rental Swahili house and the self-contained house at Likoni. The appellant further contended that the court below erred in law and misdirected itself by failing to find that the appellant acquired all properties. It was also averred that the trial Kadhi erred in law by not addressing the prayers made by the appellant in his counterclaim and only ruled that the respondent should have physical custody of the minors. The appellant urged that the court overlooked oral evidence showing that the appellant cared for the minor, whereas the respondent did not contribute to the minor’s care. Mr. Mwandarani stated that the court failed to consider the principles outlined and supported by the Supreme Court justices in the case of JOO v MBO; Federation of Women Lawyers (FIDA Kenya) & another (Amicus Curiae) [2023] KESC 4 (KLR). 6. The respondent opposed the appeal. She submitted that she was a businessman. It was her submission that she contributed towards the acquisition and development of the matrimonial properties. Ms. T stated that she worked in Saudi Arabia at some point during the subsistence of the marriage and that the proceeds of her employment were used to develop the family. She contended that during the course of the marriage, she supported the appellant. She accused the appellant of having taken her cars, leaving her with only one. She prayed that the appeal be dismissed. 7. Because this is a first appeal, this court is under a duty to re-evaluate the evidence and draw its own conclusions. It must, however, keep in mind that a subordinate court, unlike the appellate court, had the advantage of observing the witnesses' demeanor and hearing their evidence firsthand. 8. 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. In the case of Mbogo and Another vs. 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.” 9. The duty of the first appellate court was set out in the case of Selle & another Vs Associated Motor Board Company and Others [1968] EA 123, where the court 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-subordinate and the Court of Appeal is not bound to follow the subordinate 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.” 10. The Court is to bear in mind that it had neither seen nor heard the witnesses. It is the subordinate court that has observed the demeanor and truthfulness of those witnesses. 11. This court’s jurisdiction to review the evidence should be exercised with caution. In the case of Peters vs Sunday Post Limited [1958] EA 424, the court held 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19410/eng@2025-09-25 2

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to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…” 12. I note that the court did not have the advantage of seeing and hearing the witnesses, as did the lower court. Nevertheless, it must reconsider the evidence, evaluate it itself, and draw its own conclusions 13. From the memorandum of Appeal, the record of appeal, and the submission, the issues for determination in this matter are whether or not the properties are matrimonial and whether the respondent is entitled to actual custody of the minor. 14. Since the decision appealed against arises from the decision of the Hon Kadhi, I must consider the Islamic law on matrimonial properties. Matrimonial property may be defined as property acquired by the husband and wife during subsistence of the marriage in accordance with conditions stipulated by Islamic Law. Islam recognizes the right to own property by both men and women. “ And wish not for the things in which Allah has made some of you to excel others. For men, there is reward for what they have earned, and likewise for women, there is a reward for what they have earned, and ask Allah of His Bounty. Surely Allah is All-Knower of everything.” Quran .4.32. 15. Islamic law protects one's wealth and prohibits the unlawful use of another's wealth and property. 'O you who have believed, do not consume one another's wealth unjustly but only [in lawful] business by mutual consent. And do not kill yourselves [or one another]. Indeed, Allah is to you ever Merciful.” Q.4.29 16. Abu Huraira (May Allah be pleased with him) narrated that the Prophet [PBUH] said: '..the life, wealth and dignity of a Muslim are sacred'. [Muslim 2564]. 17. Islam thus recognizes the right of husband and wife to own properties and enter financial transactions either independently or with others, including with their spouse. Where a spouse contributed to the acquisition or development of a property, he or she is entitled to a commensurate share thereof. The burden to prove the specific share of contribution rests with the Claimant. 18. The Supreme Court of Kenya in JOO v MBO; Federation of Women Lawyers (FIDA Kenya) & another (Amicus Curiae) [2023] KESC 4 (KLR) agreed with the holding in the case of PME v PNE [2007] KECA 504 (KLR) on the principles applied for the distribution of matrimonial property. It stated thus: “ To our minds, the finding in Echaria was essentially that a spouse does not acquire any beneficial interest in matrimonial property by the fact of being married only and that specific contribution has to be ascertained to entitle such a spouse a share of the property." 19. The court went on to emphasize that the spouse seeking a share in the matrimonial property has to prove the extent of his or her contribution to the acquisition or development of the property. It stated: “ The guiding principle again should be the apportionment and division of matrimonial property may only be done where parties fulfil their obligation of proving what they are entitled to by way of contribution." 20. The court of law can give a determination on the claim based on the evidence produced by the claimant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19410/eng@2025-09-25 3

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21. The Holy Quran Chapter 27, verse 64 provides as follows: “ Produce your proof if you truthful." The Holy Prophet (May Peace Be Upon Him) states that: "If people were given according to their claims, the men would claim the wealth and lives of other people; rather, the burden of proof lies on the claimant, and the oath is duty of who denies the claim." 22. In Bukhari 3/167, Tirmidhy 3/18, Abu Dawood 5/469 and lbn Majah 2/778 it was stated that: “ The onus of proof lies on the plaintiff, and the oath is to be taken by the defendant." Bukhari [4552], Muslim (1/1711] and Al Baihaki [10/252] a. Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides that: “ Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” 23. In the instant case, there are three properties in contention; rental Swahili house, a self-contained and motor vehicle KCU XXXX . It is not disputed that the landed properties were acquired during the subsistence of the marriage between the parties herein. The appellant conceded that the respondent made a contribution, which in his view was only Kes 40,000. In my view, the learned Kadhi correctly assessed the said properties as being matrimonial properties. 24. The respondent is a business lady. During part of the coverture, she worked in Saudi Arabia. Her evidence that she contributed her savings so that the properties could be bought and developed was uncontroverted. In my view, the learned Kadhi wasn’t in error when he made the finding in the judgment. 25. The upshot of the foregoing is that the learned Kadhi, in my view, made the right determination regarding the matter before him. I cannot fault him. That being the case, I find and hold that the appeal has no merit. The same is dismissed. 26. This being a family matter, each party shall bear his/her own costs of the appeal. 27. It is so ordered. DATED AND SIGNED IN MOMBASA, THIS 25TH DAY OF SEPTEMBER 2025. DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS. GREGORY MUTAI JUDGE In the presence of: Ms. Bakari T (pro se litigant); No appearance for the Appellant; and Arthur – Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19410/eng@2025-09-25 4

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