Mgg & 1 other v Akk & 1 other

Memorandum of Appeal 5. 6. The Appellants have presented the following grounds for consideration. 1. That the Hon. Kadhi erred in law and fact by failing to take into account the Appellant’s evidence and failing to give them a fair hearing in regard to the livestock involved ,and settling on the Respondent’s version. 2. That the Hon. Kadhi erred in fact and law by failing to properly determine the original and current estate of the deceased. 3. That the Kadhi erred in law a fact in upholding the Respondent’s and their witnesses’ testimonies and proceedings on extraneous consideration which was not before the court to disregard the Appellant’s evidence which was verifiable. 4. That the trial Kadhi erred in fact and law in failing to find that there was intermeddling in the estate of the deceased by the Respondent and failing to compensate the Estate/Minor for the squandered and misused estate. 5. That the Hon. Kadhi erred in law and fact by failing to compensate the subject Halake Sora for the expenses of upkeep, clothing and school fees and expenses even after production of school fees for two years. 6. That the Honourable Kadhi erect in fact and law by failing to award costs and interested for cancellation of several hearing and mentions despite dutiful attendances by petitioners and their witnesses The Appeal was presented through written and oral submissions. Appellants submissions 7. It is the Appellants’ submissions that the Respondents herein dealt with the deceased’s estate without any prior appointment as the Administrators of the deceased’s estate and their actions amounted to intermeddling with the estate. In this regard, the Appellants have relied on the provisions of Section 45 of the Law of Succession Act (The Act), and the court’s decision in the case of Veronica Njoki Wakongo (Deceased) (2013) eKLR, on the nature and prohibition of intermeddling. They have also cited the decision in the Estate of M’Ngaruthi M. Miriti (2017) eKLR on the acts that constitute intermeddling. 8. It is argued that the Respondents were never executors of any will and never sought for legal representation intestate and as such they did not have any authority to deal with the deceased’s estate. 9. The Appellants also fault the trial court for holding that it did not have jurisdiction to deal with the question of ownership of Plot No. xx situated in Tullo Roba. They contend that the fact of intermeddling gave jurisdiction to the trial court to deal with the issue.The Appellants have relied on the decision in the case of Susan Katude Lewa & Another Vs Christine Ndingo Maingi & 4 Others (2015) eKLR to buttress their submissions in this regard. 10. It is further submitted that to the extent that intermeddling has been proved, the minor herein is entitled to compensation pursuant to the provisions of Section 45 (2) (b) of the Act. It is therefore submitted that the respondents must account for the assets that were interfered with. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5759/eng@2026-04-09 2

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11. It is the Appellants’ final submissions that there was uncontroverted evidence that the deceased owned some properties; that properties were in control of the Respondents; and that the Respondents mismanaged the properties to the detriment of the minor herein. 12. It is finally submitted that the trial Kadhi disregarded the evidence of the Appellants evidence despite the threshold of proof having been met. Respondents’ submissions 13. It is the Respondent’s submissions that the determination of the trial court in respect to the Assets of the Estate was correct; and that there was no evidence in support of the other alleged Assets. 14. It is also submitted that the above findings were made based on the evidence as presented to the court. Analysis and determination 15. In compliance with Section 65 of the Civil Procedure Act, this Appeal was heard alongside Hon. A .1 .Dadacha, (Principal Kadhi , Isiolo) and Hon. Thulkif W. Karanja, (Principal Kadhi , Garbatulla.).The court has also benefited from their comprehensive analysis on the issues before court, and which analysis is available on record. 16. An appeal to the high court from the Kadhi’s court, just like other subordinate courts, is by way of a retrial. Consequently, this court is mandated to review the evidence, re-evaluate and arrive at its own conclusion, but with due allowance being made for the fact that the trial court had the advantage of hearing the witnesses first- hand and observing their demeanour. ( see Selle & Ano Vs Associated Motor Boat Co. Ltd. &. Others [1968] EA 123 at 126) 17. The court has identified the following issues for determination a. Whether the Respondent had the locus standi to Administer the estate of the deceased. b. Whether there was intermeddling with the Estate and whether the minor should be compensated c. What are the Assets of the Estate d. Did the Appellants prove their case ? e. Issue of costs. The issue of Locus standi 18. On the first issue, the Appellant has argued that the Respondent did not take out Letters of Administration Intestate, and were never Executors of any will. Consequently, their acts constituted intermeddling with the estate. 19. There is common ground that the deceased was a Muslim. Therefore, the Administration of deceased’s estate fell under the Islamic Law. This is founded on Section 2 (3) of the Law of Succession Act, which provides as follows: “Subject to sub section 4, the provisions of this Act shall not apply to testamentary or intestate succession to the estate of any person who at the time of his death is a Muslim to the intent that in lieu of such provisions the deduction of the estate of any such person shall be governed by Muslim Law” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5759/eng@2026-04-09 3

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20. Under the Act it is only an Executor appointed under a will or Administrator appointed by the court in intestate succession, who has the legal capacity to administer a deceased person’s estate. However, there is no such requirements under the Muslim Law of succession. In this regard, M. Musyoka in “Law of Succession (Law Africa, 2006) writes as follows; “According to the General Principles of Islamic jurisprudence, there was no administration but a mere distribution of the estate by the heirs of by the state. The notion was that the estate did not rest in the personal representative of the deceased of the state but in the heirs, from the moment of death of the deceased. Administration of estates, in a sense of recognition of executors or appointment of an Administrator is alien to Islamic law or jurisprudence. The duty of distributing the estate of the deceased lies with the state or the heirs “(Page 295). 21. Further in Chelanga Vs Juma [2002] eKLR 339 the court held; “The provisions of the law of succession Act – did not apply to testamentary or intestate succession in respect of the estate of any person who at the time of his death is a Muslim. In lieu of those statutory provisions, the devolution of the estates to any such person has to governed by Muslim law”. 22. Thus, the taking out of Letters of Administrations intestate in respect of a deceased person who professed the Muslim religion is not mandatory. In the present case, there was consensus among the witnesses that the 1st respondent was given the responsibility to take care of the estate in his capacity as the brother of the deceased. The arrangement was therefore in tandem with the dictates of Islamic law, and as such the respondents could not be said to have been intermeddling. I hasten to add however that the recent trends in the decision of the Superior Courts is that letters of Administration are necessary for transfer of the deceased’s properties like land and money in the financial institution. The transfer of cattle does not require formal conveyance. On the other hand as for the two plots said to be in Merti , there were no plot Numbers availed and their registration status are unknown. It is not possible for the court to therefore ascertain whether any formal transfer would be required or direct registration to the beneficiaries would suffice. 23. It is also important to point out that part IV of the Act, on Administration of the deceased’s estate can be applied to the Administration of the estate of a deceased Muslim as long as the same is not inconsistent with sharia law of succession. ( see section 2(4) of the Act. Whether there was intermeddling with the Estate and whether the minor should be compensated 24. According to the Appellant’s witnesses, the deceased had 300 herds of cattle but which the Respondents kept on selling until the herd was depleted. According to the respondents however, the herd suffered perils of drought particularly in the year 2015 and 2017. I agree with the trial Kadhi in his observation that the fact that the cattle fell victim to the severe drought referred to, was not contested by the Appellants. It is admitted that some were sold to take care of the school fees of the seven children of the deceased. 25. I have carefully considered the Appellants witnesses testimonies. Despite the insistence on the existence of 300 heads of cattle by the said witness, there was no other tangible evidence to back it up. It was stated that the cattle were kept in a Boma with a capacity of 100 each, in accordance with Borana customs, and that the deceased had three of such Bomas . There was no expert on Borana customs and / or practices to corroborate the witness’s assertion in this regard. To base the estimate of the cattle on the evidence of the witnesses none of whom was an expert would have been speculative. 26. The legal burden was on the Appellant, and in this regard, the evidential burden too. Am not persuaded that there was sufficient evidence that at the time of his demise, the deceased had 300 heads of cattle. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5759/eng@2026-04-09 4

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27. The other aspect of intermeddling was the alleged sale of a portion of plot xx at Isiolo Town to one Hussein Bidu. There is no evidence however that the deceased was the original owner of the plot. It helps to remember that what is legible for distribution is the free property of a deceased person and section 3 of the Law of succession At defines free property as “In relation to a deceased person, means the property of which that person was legally competent, freely to dispose during his lifetime, and in respect of which his interest has not been terminated by his death.” A deceased person could only dispose of that which in registered in his name or that which is proved to be the beneficial owner during his lifetime. It is the net of this free property that will be available for distribution upon death. There was no evidence that plot xx was owned by the deceased as aforesaid. 28. Further if it is true that the deceased owned the property, and the estate wishes to reclaim it, then I agree with the trial court that the issue as to how it left the estate and onto the hands of a 3rd party is an issue to be determined by the Environment and Land Court and not any other court sitting as a family or succession court. 29. The Appellant, in submitting that the Kadhi at sitting as a family court had jurisdiction has relied on the decision in Susan Katinda Lewa & Anor Vs Christine Ndinga (Supra). I have looked at the said decision and noted that the issue in the cited decision was the sale of deceased’s land before formal distribution. The succession court held, correctly, that it had jurisdiction, since it was evidently a case of intermeddling with the Assets, before distribution to the beneficiaries. However, the issue before this court is different; it is the determination of ownership of land by the deceased prior to his demise. Before one can talk of interfering with deceased’s property before formal distribution, as a matter of necessity, it must first be established that the deceased owned the property in the first place. To conclude on this issue, there was no evidence that the deceased was the original owner of plot No. xx at Isiolo Town. There was equally no evidence that there existed any orphans’ stipends which was being received by the respondents. The Bank communicated to the court stating that there was no Bank Account held in the name of the deceased. 30. I have not found any tangible evidence of intermeddling. The Appellants failed to prove their case in this regard. 31. It follows that having found that there was no evidence of intermeddling, then the issue of compensating one of the beneficiaries does not arise. The Assets of the Estate 32. The court has already arrived at a finding that there was no proof of 300 heads of cattle; that there was no proof of any orphans’ stipend and finally that there was no prove of ownership of plot No. xx at Isiolo town by the deceased. The 1st Respondent admitted that there were 42 herds of cattle. The widow of the deceased admitted that there were two plots at Korbesa, Merti sub- county belonging to each house/ wife. There was no contest on this. Admitted facts require no proof. 33. I entirely agree with the trial court that the 42 heads of cattle and the two plots in Merti were the only ascertainable properties of the deceased. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5759/eng@2026-04-09 5

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Did the Appellants prove their case? 34. The appellants have complained that while their evidence carried more weight, it was disregarded by the court, and the court gave more weight to the respondent’s version. It behoves to recall the following provisions of the Evidence Act: 107. Burden of proof: (1) 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. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 108. Incidence of burden: The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. 109. Proof of particular fact: The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. 35. This was the Appellant’ case. The legal and largely the evidential burden, was on them. As demonstrated before, most of the evidence by the Appellants’ witnesses was largely speculative. The many witnesses are not necessarily equivalent to sufficient proof. On the other hand, the figure of 42 heads of cattle was based on an admission by the respondent. The existence of two plots was also by way of an admissions by the respondent’s witnesses. Admitted facts require proof as aforesaid, and thus the judgment was akin to judgment on admission. In other words, the Appellants had failed to prove their case, but the trial court went on to base its judgment on admission. There was no error at all in that approach. 36. The Appellants’ case failed to meet the threshold of proof and I have no reason to interfere with the trial court on its findings. Issue of costs 37. Finally, the Appellants faulted the trial court for failing to award costs. If suffices to state that the awarding of costs is at the discretion of the trial court. It is also the practice of the courts not to award costs on disputes involving families unless absolutely necessary. I do not find any merit in this complaint. 38. In conclusion the appeal is unmerited. It is hereby dismissed. Each party to meet their own costs. DATED SIGNED AND DELIVERED VIRTUALLY, AT NAIROBI, THIS 9TH DAY OF APRIL, 2026 S. CHIRCHIR JUDGE In the presence of: Roba Katelo – court assistant Mr Jarso for the Appellants https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5759/eng@2026-04-09 6

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