In re Estate of Abdi

misled. Counsel stated that, if granted further time, he would wish to obtain an adavit from the Deputy Registrar in support of those allegations. 4. The Objectors oppose the Preliminary Objection. Their position is that the alleged consent and transfer questions have already been considered by the High Court; that the operative High Court order transferring the cause to Isiolo remains valid and binding; and that the factual allegations now advanced by the Petitioner cannot properly sustain a preliminary objection. 5. The issues requiring determination are whether the objection satises the legal threshold of a preliminary objection; whether this Court lacks jurisdiction under Article 170(5) of the Constitution and section 5 of the Kadhis’ Courts Act; and what eect the subsisting High Court orders have upon the objection. 6. Jurisdiction is fundamental. Article 170(5) of the Constitution limits the jurisdiction of a Kadhi’s Court to 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 Kadhis’ Courts. Section 5 of the Kadhis’ Courts Act provides the corresponding statutory jurisdiction in questions of Muslim law relating to personal status, marriage, divorce and inheritance. 7. Article 170(4) further provides that the Chief Kadhi and the other Kadhis shall each be empowered to hold a Kadhi’s Court having jurisdiction within Kenya. The constitutional inquiry under Article 170(5) is therefore whether the subject matter falls within the prescribed Muslim personal law jurisdiction, whether the parties profess Islam and whether they submit to adjudication by the Kadhis’ Courts. It is distinct from the administrative or procedural question as to the particular Kadhi’s Court station at which a cause should proceed. 8. In Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd, the Court of Appeal emphasised that jurisdiction is foundational and must be resolved once properly raised. That principle requires this Court to determine the present challenge. It does not, however, establish that the challenge is meritorious. 9. The rst diculty with the Preliminary Objection is that a substantial part of it does not present a pure question of law. The established principle in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd is that a preliminary objection must arise upon a pure point of law capable of determination without ascertainment of contested facts or reception of evidence. 10. The Petitioner now relies upon allegations that references to Nyeri were deleted, that Isiolo was inserted, that the transfer was an administrative mistake and that the Deputy Registrar was misled. Those allegations are disputed. Counsel himself acknowledged the evidential character of the contention when he sought time to obtain an adavit from the Deputy Registrar. 11. Determining those allegations would require examination of the relevant original records and evidence concerning the circumstances in which the transfer documentation was prepared or processed. Such disputed matters of fact cannot properly be proved or disproved through a preliminary objection. 12. For avoidance of doubt, this Court makes no factual nding that the alleged deletion, alteration, manipulation or administrative mistake did or did not occur. The Court nds only that such allegations require evidence and consequently cannot constitute the foundation of a pure preliminary objection. https://new.kenyalaw.org/akn/ke/judgment/kekc/2026/17/eng@2026-09-03 2

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13. The second diculty concerns the true nature of the jurisdictional complaint. This is a succession cause concerning the estate of a deceased Muslim. The Petitioner previously conrmed before this Court that the estate is subject to Islamic law of succession. 14. More signicantly, the Petitioner does not contend that the succession cause should be determined outside the Kadhis’ Courts. Her case is that the matter ought to be determined by the Kadhi’s Court at Nyeri rather than the Kadhi’s Court at Isiolo. 15. On this record, that is not a rejection of the jurisdiction of the Kadhis’ Courts contemplated by Article 170(5). It is a disagreement concerning the particular station or venue at which Kadhi jurisdiction should be exercised. 16. A preference for one Kadhi’s Court station over another cannot, without more, be converted into absence of constitutional subject-matter jurisdiction. No party can confer jurisdiction where the Constitution withholds it; equally, a disagreement concerning venue cannot extinguish jurisdiction which otherwise satises the constitutional requirements. 17. The third, and in the circumstances decisive, consideration is the subsisting High Court order governing the transfer of this cause. 18. The record contains an order of the High Court at Nanyuki in HCCMISC No. E005 of 2025, made on 1st December 2025 and issued on 4th December 2025, withdrawing Nanyuki Succession Cause No. E091 of 2023 from the Chief Magistrate’s Court at Nanyuki and transferring it to the Kadhi’s Court at Isiolo for hearing and disposal. 19. The order was implemented. The court le was forwarded from Nanyuki and registered before this Court as KCSUCC No. E008 of 2026. 20. The Petitioner thereafter moved the High Court at Isiolo in HCCMISC No. E030 of 2026 seeking, in substance, transfer of this cause from Isiolo to Nyeri. 21. In its ruling delivered on 30th July 2026, the High Court considered the alleged consent dated 12th June 2025. It found that although the consent appeared in the record, there was no evidence that it had been adopted as an order of the Court. The High Court contrasted that position with the express order made on 1st December 2025 and issued on 4th December 2025 transferring the succession cause to the Kadhi’s Court at Isiolo. 22. The High Court further found that the transfer order had been issued by a court of competent jurisdiction, had not been set aside and remained in force. The application seeking transfer to Nyeri was dismissed, the temporary stay was discharged and this Court was left at liberty to proceed. 23. No subsequent order staying, varying, reviewing or setting aside that transfer has been placed before this Court. 24. This Court is a subordinate court under Article 169 of the Constitution. Article 165(6) and (7) vests the High Court with supervisory jurisdiction over subordinate courts. This Court cannot sit on appeal over a High Court order, collaterally invalidate it, or decline to obey it because a party maintains that the superior court or registry was mistaken or misled. 25. If the Petitioner considers the Nanyuki High Court order to have arisen through error, irregularity or misinformation, the law provides mechanisms before the competent superior court. Until a lawful order reviewing, staying, varying or setting aside the existing transfer order is made, this Court is bound to give eect to it. https://new.kenyalaw.org/akn/ke/judgment/kekc/2026/17/eng@2026-09-03 3

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26. Section 18 of the Civil Procedure Act therefore does not avail the Petitioner in this Preliminary Objection. The question of transfer has already been placed before courts competent to deal with it. An operative High Court order transferring the cause to Isiolo exists, and a subsequent attempt to transfer the same cause to Nyeri was considered and dismissed by the High Court. 27. The Court has also considered the invocation of Articles 47 and 50(1) of the Constitution. The Petitioner has been accorded a fair opportunity to ventilate the Preliminary Objection. The objection was received, written submissions were led, the Objectors responded, counsel was specically invited on 2nd September 2026 to identify the jurisdictional point said to remain outstanding, and both sides expressly elected to rely upon their written submissions. 28. The constitutional right to be heard protects a party’s opportunity to present its case. It does not confer upon a litigant a right to require a subordinate court to disregard a subsisting superior-court order. 29. There is also a compelling case-management consideration. This cause concerns succession to a Muslim estate. Its ultimate purpose is to ascertain the lawful heirs, identify and preserve the estate and its liabilities, determine the validity of the existing grant, and thereafter ensure that every person proved to be a lawful heir receives the share lawfully due to him or her under Muslim inheritance law. 30. The Court must therefore guard against the substantive inheritance dispute becoming indenitely displaced by repeated litigation over whether the proceedings should be undertaken at Nyeri rather than Isiolo. Both are Kadhi’s Court stations exercising the constitutional jurisdiction conferred upon Kadhis in matters properly falling under Article 170(5); the question of the station at which this particular cause should proceed has, in addition, been expressly governed by a subsisting High Court transfer order. 31. The procedural history demonstrates that the matter has remained substantially at the casemanagement stage for an extended period. The Court has repeatedly required the parties to clarify lawful and disputed heirs, identify the complete estate and liabilities, produce supporting documentation, disclose rental and other estate income and place before Court their proposed distribution under Islamic law. 32. The record further discloses repeated instances of incomplete compliance. The transfer proceedings before the High Court subsequently interrupted substantive progression of the succession cause. After the High Court dismissed the transfer application and discharged the stay, this Court granted a nal limited opportunity for compliance. 33. At the subsequent mention on 18th August 2026, the Petitioner raised the present Preliminary Objection. Because jurisdiction is a threshold question, the Court accorded the objection priority, gave each side an opportunity to le submissions and has now determined it. 34. Rule 5 of the Kadhis’ Courts (Procedure and Practice) Rules, 2020 requires the Court and the parties to further the just, expeditious, proportionate and aordable resolution of disputes and requires parties and their advocates to comply with the directions and orders of the Court. 35. There must now be procedural nality on the venue issue at this level. This does not restrict any party’s lawful right of appeal, review or other recourse before a competent superior court. It means only that the ling or contemplated ling of another application does not, without a valid stay, suspend the proceedings of this Court. 36. I therefore nd that the Preliminary Objection fails on three independent grounds. First, its material allegations of alteration, deletion and administrative mistake require factual proof and do not satisfy the threshold of a pure preliminary objection. Second, the Petitioner’s insistence upon adjudication https://new.kenyalaw.org/akn/ke/judgment/kekc/2026/17/eng@2026-09-03 4

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before the Kadhi’s Court at Nyeri reveals a dispute concerning station or venue rather than rejection of the jurisdiction of the Kadhis’ Courts under Article 170(5). Third, there remains an operative High Court order transferring this cause to Isiolo, subsequently considered and left undisturbed by the High Court at Isiolo, which this Court has neither jurisdiction nor authority to disregard. 37. The Preliminary Objection dated 18th August 2026 is consequently devoid of merit and is dismissed. 38. This ruling determines only the Preliminary Objection. It makes no determination on the merits of the Summons for Revocation of Grant, the identity of the lawful heirs, ownership of disputed property, alleged concealment or intermeddling, or the respective Islamic inheritance shares. Those matters remain for determination upon the evidence. Final Orders 1. The Petitioner/Respondent’s Preliminary Objection dated 18th August 2026 is hereby dismissed. 2. KCSUCC No. E008 of 2026 shall continue before the Kadhi’s Court at Isiolo pursuant to the subsisting High Court transfer order unless and until a competent superior court issues a valid order staying, varying, setting aside or otherwise aecting that order. 3. For avoidance of doubt, the ling, intended ling or pendency of an appeal, review or other application shall not operate as a stay unless a valid stay order is issued by a competent court and formally placed before this Court. 4. The Summons for Revocation of Grant dated 9th April 2025 shall proceed on priority upon conrmation of compliance with the outstanding pre-hearing directions. 5. The Summons for Conrmation of Grant dated 20th January 2025 shall remain in abeyance pending determination of the Summons for Revocation of Grant, ascertainment of the lawful heirs and verication of the estate. 6. For the limited purpose of enforcing and completing the Court’s earlier compliance directions, leave is hereby granted to the parties to le only the outstanding documents specically identied below. This shall not constitute a general reopening of pleadings or evidence. All such outstanding compliance documents shall be led and served on or before 8th September 2026. No other adavit, pleading or document shall be led without prior leave of the Court upon sucient cause being shown. 7. The Petitioner/Respondent, to the extent not already complied with, shall le and serve: a. the outstanding replying adavit to the Summons for Revocation of Grant; b. an updated disclosure adavit; c. a complete list of persons alleged to be lawful heirs, identifying separately any disputed alleged heir; d. the evidence relied upon concerning the status of Abubakar Abdi Adan, Yusuf Welly Salah, Soa Ali and Habiba Ndae Abdile/Habiba Dahir; e. a complete inventory of all known or alleged estate assets and liabilities; f. all material relied upon concerning Plot No. 100 Nanyuki Municipality, Plot No. 4, motor vehicle KAA 158E, the Toyota station wagon appearing in the record as KAU 413J/KAU 414J, the identied ABSA accounts, pension/death benets and rental income; https://new.kenyalaw.org/akn/ke/judgment/kekc/2026/17/eng@2026-09-03 5

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8. g. the rental-income account previously ordered, identifying the relevant property, rental units or tenants, rent received, person receiving or controlling the rent, expenditure and present position of the income; and h. the Petitioner’s proposed mode of distribution under Muslim law, expressly subject to the Court’s eventual determination of disputed heirship and estate assets. The Objectors/Applicants, to the extent not already complied with, shall le and serve: a. any outstanding supplementary adavit previously authorised by the Court; b. a complete list of alleged heirs, separately identifying undisputed and disputed alleged heirs; c. the evidence relied upon concerning the alleged heirship of Abubakar Abdi Adan and the disputed status of Yusuf Welly Salah; d. a complete inventory of alleged estate assets and liabilities, separately identifying undisputed, disputed, omitted and newly alleged assets; e. all available documentary evidence relied upon concerning land, motor vehicles, bank accounts, pension/death benets and rental income; and f. the Objectors’ proposed mode of distribution under Muslim law, expressly subject to the Court’s eventual determination of the lawful heirs and net distributable estate. 9. ABSA Bank Kenya PLC’s compliance already received and conrmed by the Court shall stand recorded. No duplicate disclosure shall be required unless specically ordered. 10. The response already received from the Kenya Revenue Authority pursuant to the disclosure order of 18th August 2026 is received and retained on the court record as institutional compliance. Its contents shall not, without more, constitute a nding on the existence or non-existence of any estate asset. 11. The disclosure orders issued on 18th August 2026 to Safaricom PLC, the National Transport and Safety Authority and the Ministry of Defence/Kenya Defence Forces or the relevant pensions oce remain in full force. 12. To the extent that any of those institutions has not complied, the party responsible for service shall ensure that proper proof of service is led and shall pursue compliance forthwith. 13. The institutional disclosure orders remain conned to identication and verication of potentially relevant estate property or benets. Receipt of an institutional record shall not by itself determine ownership, benecial entitlement or whether a particular benet forms part of the distributable estate. 14. All documents required under these orders shall be properly led through the CTS/e-ling portal and served upon the opposite party. Informal transmission to the Court or Court Assistant shall not substitute formal ling. 15. Save for the specic compliance lings permitted under Orders 6, 7 and 8 above and institutional responses already ordered, further ling remains closed. No additional adavit, pleading, submission or documentary evidence shall be led without prior leave of the Court upon sucient cause being demonstrated. 16. All previous preservation and non-dealing orders remain in full force. No party, administrator, beneciary or other person having notice of the orders shall sell, transfer, withdraw, distribute, conceal, https://new.kenyalaw.org/akn/ke/judgment/kekc/2026/17/eng@2026-09-03 6

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charge, waste, intermeddle with or otherwise dispose of any asset or income alleged to form part of the estate without express leave of the Court. 17. The parties and advocates are put on notice that 9th September 2026 is a rm compliance mention. Each counsel shall attend prepared to identify, order by order: a. what has been complied with; b. the CTS ling date; c. the date and mode of service; d. every institutional response received; and e. any item genuinely remaining outstanding and the precise reason for the default. 18. No further adjournment founded upon the question whether this cause should proceed at Nyeri rather than Isiolo shall be entertained, unless a valid and subsisting order of a competent superior court staying, transferring or otherwise aecting these proceedings is formally placed before this Court. 19. Subject to the state of compliance on 9th September 2026, the Court shall give rm directions for the substantive hearing of the Summons for Revocation of Grant dated 9th April 2025. 20. Any unexplained failure to comply with a subsisting order or direction shall attract such lawful casemanagement or enforcement orders as may be necessary to protect the estate, preserve procedural fairness and prevent further delay. 21. Considering that this remains a family succession cause, each party shall bear its own costs of the Preliminary Objection. 22. Mention on 15th September 2026 for strict conrmation of compliance and rm substantive hearing directions. DATED, SIGNED AND DELIVERED AT ISIOLO THIS 3RD DAY OF SEPTEMBER 2026. HON. A. I. DADACHAPRINCIPAL KADHI https://new.kenyalaw.org/akn/ke/judgment/kekc/2026/17/eng@2026-09-03 7

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