In re Estate of Bakari Ali Mwajambiya (Deceased) (Family Appeal E002 of 2023) [2024] KEHC 967 (KLR) (31 January 2024) (Ruling)
Neutral citation:
[2024] KEHC 967 (KLR)
Republic of Kenya
Family Appeal E002 of 2023
G Mutai, J
January 31, 2024
IN THE MATTER OF THE ESTATE OF BAKARI ALI MWAJAMBIYA(DECEASED)
Between
Kibwana Athumani Muhala
Appellant
and
Salim Bakari Mwajambia
1st Respondent
Mohamed Matano
2nd Respondent
Ruling
Introduction
1.The Appellant/Applicant is aggrieved by the decision of the Hon. Jamal I. Opacha, Senior Resident Kadhi, delivered on 30th November 2023, in which he found in paragraphs 4, 5 and 6 as follows:-
2.On 18th December 2023 the Appellant/Applicant filed the Memorandum of Appeal together with a Notice of Motion under a Certificate of Urgency dated 14th December 2023 vide which he sought the following orders:-
3.The grounds of the application were that the Appellant/Applicant is the grandson of the deceased, being the son of Mwanajuma Ali Bakari (deceased). He professes the Christian faith. In his view, the fact that he is a Christian ousted the jurisdiction of the Kadhi’s Court, and the said court should not, therefore, have heard and determined the succession proceedings. The foregoing notwithstanding the learned Kadhi made a determination in which he was excluded from the list of beneficiaries and denied him his rightful share. Being aggrieved, he had filed an appeal against the said decision to this Court. He was apprehensive that distribution of the estate may proceed to his detriment. In such an event, the estate would be dissipated, and he would thereby suffer irreparable loss.
4.The application is opposed. The 1st Respondent filed a Replying Affidavit on 11th January 2024. In the said affidavit, he deposed that the Appellant/Applicant is the grandson of Mwanajuma Ali Bakari (deceased), the daughter of Bakari Ali Mwajambiya. The Appellant/Applicant was born and raised Muslim and therefore knew the Islamic Sharia law on the issue of inheritance “and the consequences of converting to other faiths but on his own full knowledge as an adult chose to convert to Christianity”. He deposed that upon becoming a Christian, the Appellant/Applicant ceased to be a beneficiary of the estate of the late Bakari Ali Mwajambia (deceased); therefore, the Kadhi’s Court had jurisdiction to hear and determine the matter.
5.The 1st Respondent further deposed the Hon. Kadhi was right to make the determination he made as it was based on the Islamic Sharia Law. He contended that as the deceased did not leave a Written Will, the only course of action available to the Appellant/Application was to seek sympathy from his sister, who got a 50% share each of the parts of the estate that was due to Mwanajuma Ali Bakar “and be given as a gift but not as share of the beneficiary of the deceased’s estate”.
6.This Court issued interim reliefs on 22nd December 2022. The Court ordered that
7.The matter was heard on 24th January 2024.
Submissions by the Parties
8.Ms. Mango, the learned counsel for the Appellant/Applicant, submitted that her client would suffer substantial loss unless the stay was granted, as shares which had already been identified would be distributed. That fact would dissipate the estate hence rendering the appeal nugatory. She urged that the Appellant/Applicant approached the Court in good time as he made the application within two weeks of the issuance of the impugned orders.
9.Counsel submitted that the Respondent hadn’t directly opposed the application but had instead concentrated on the merits of the appeal. She, therefore, prayed that I allow the application.
Submissions by the Respondents
10.The 1st Respondent, Salim Bakari Mwajambia, submitted on his own behalf, as well as on behalf of the 2nd Respondent, that the Appellant/Applicant changed his faith, on his own volition, despite being aware of the applicable Muslim law and the ensuing consequences. He stated that Kibwana was named as a beneficiary in the application before the Kadhi but that the law did not favour him. In the circumstances he submitted, Kibwana ought to seek the compassion of his sisters. He, therefore, prayed that I dismiss the application.
The applicable law
11.Order 42 Rule 2 of the Civil Procedures Rules, 2010 provides as follows:-
12.In considering the forgoing Rule I must have in mind Section 1A and 1B of the Civil Procedure Act provides as follows:-
Analysis and Determination
13.In my view, therefore, the Applicant has to satisfy the conditions set out in order 42 Rule 2 of the Civil Procedure Rules by showing that he will suffer substantial loss unless the stay order is made. Secondly, he must show that the application was made without unreasonable delay. Thirdly he must give a security. Has the Applicant satisfied those grounds? I will look at each of them in turns.
Substantial Loss
14.The Court, in the case of James Wangalwa & another v Agnes Naliaka Cheseto [2012]eKLR, expounded on what amounts to substantial loss. The Court stated that:-The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail, a question that was aptly discussed in the case of Silverstein v Chesoni [2002] 1KLR 867, and also in the case of Mukuma Versus Abuoga quoted above. The last case, referring to the exercise of discretion by the High Court and the Court of Appeal in the granting stay of execution, under Order 42 of the CPR and Rule 5(2) (b) of the Court of Appeal Rules, respectively, emphasized the centrality of substantial loss thus:
15.The Appellant/Applicant is aggrieved by the decision of the Senior Resident Kadhi, which found that by virtue of being a Christian, he had no right to inherit his grandfather’s estate. The learned Kadhi went ahead to order the County Land Registrar of Kwale to effect orders as directed by the Court. If these orders are effected, it is likely that the beneficiary will be able to dispose of the same as there will be nothing barring them from doing so. If that happens, the Appellant/Applicant shall, in my view, suffer substantial loss.
16.I must point out that a stay of execution order serves a very important purpose as it preserves the subject matter of the appeal. This ensures that the successful appellant gets the benefit of the judgment. The Court in RWW v EKW [2019]eKLR stated as follows:-
Unreasonable Delay
17.The appeal and the application were filed on 18th December 2023. In my view, the appeal was filed without unreasonable delay.
Security for Due Performance of the Decree
18.Although the Appellant/Applicant offered no security for the due performance of the order that may ultimately be binding in him, I take note that this is a dispute over inheritance. This Court, however, in the exercise of its discretion, can issue conditions that would ensure that the matter is heard and concluded as soon as possible so that the administration of the estate can be completed.
Determination
19.It is, therefore, my finding that the application has merit. I allow the same. Consequently, I order that:-1.The decree and the judgment in Succession cause No E213 of 2023; In the Matter of the Estate of Bakari Ali Mwajambiya (deceased) be and is hereby stayed pending the hearing and determination of the appeal; and2.The Appellant/Applicant is to file the Record of Appeal within 30 days of the date of this ruling.
20.As this is a family matter, each party shall bear own costs.Orders accordingly.
DELIVERED, DATED, AND SIGNED THIS 31ST DAY OF JANUARY 2024 AT MOMBASA VIA MICROSOFT TEAMS.…………………………………GREGORY MUTAIJUDGEIn the presence of: -1st and 2nd Respondents (in person);No appearance for the Appellant/Applicant; andArthur – Court Assistant