Said & another v Mohamed & 2 others (Civil Appeal E041 of 2023) [2026] KECA 552 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a family succession appeal, confirming that a Kadhi's Court estate distribution was fair and lawful.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the proceedings before the Kadhi's Court, as affirmed by the High Court, violated the Appellants' constitutional right to a fair hearing by reason of the refusal to recall witnesses
- 2.Whether the taking of evidence by the Kadhi from persons who were not parties to the proceedings and who had no nexus with the dispute offended the principle of a fair hearing
- 3.Whether the Kadhi erred in treating the proceedings as relating to the estate of Mohamed Said Saar in the absence of a petition for that estate, thereby erroneously treating the two estates as one
Key legal issues
#Whether refusal to recall witnesses violated the right to a fair hearing
No. The Appellants actively participated in the hearing, cross-examined all Respondent witnesses, raised no contemporaneous objection to the documents or procedure, and suffered no prejudice. The Kadhi's refusal was a proper exercise of judicial discretion correctly upheld by the High Court.
Order 18 Rule 10 of the Civil Procedure Rules and Section 146(4) of the Evidence Act confer a discretionary power to recall witnesses. The discretion must be exercised judicially and is interfered with on appeal only on stringent grounds. The record showed the Appellant was present, cross-examined, and never objected to the documents or the procedure during the hearing. No prejudice from late service of documents was demonstrated, so Article 50 was not infringed.
Whether the Kadhi's summoning of two court witnesses offended fair-hearing principles
No. The two witnesses were heirs of the estate under distribution, not strangers, and the Appellant was present during their testimony at the site visit and did not object.
The witnesses, Nuru Mohamed Said and Swaleh Salim Said, were daughter and nephew respectively within the family of Mohamed Said Saar, hence heirs of the very estate being distributed. Neither party had called them. Under the Constitution and Islamic law they were entitled to be heard. The Kadhi's decision to summon them as court witnesses in the interests of justice was proper, and the Appellant, present throughout, raised no objection.
Whether the Kadhi erred in dealing with the estate of Mohamed Said Saar without a petition for that estate
No. The Kadhi expressly distinguished the two estates; identifying the grandfather's estate was a necessary antecedent to ascertaining Amer Mohamed's 14/96 share, which was then distributed to the Respondents as heirs of Amer Mohamed's estate.
The petition concerned the estate of Amer Mohamed, an heir of the undistributed estate of his father Mohamed Said Saar. To distribute Amer's estate, the Kadhi first had to identify the property and heirs of the grandfather's estate, undistributed since 2003. The judgment quoted shows the Kadhi was alive to the distinction. Having identified Amer's 14/96 share, the Kadhi then distributed it to the Respondents as Amer's heirs. Treating the estates in that sequential manner was legally sound.
Whether the Preliminary Objection on filing timelines under Rules 77(2) and 84(1) succeeds
No. Having not moved by way of a Rule 86 application within 30 days of service of the Notice or Record of Appeal, the Respondents are barred by Rule 107(b) from raising the objection without leave.
Rule 86 (formerly Rule 84) permits an application to strike out a Notice or Record of Appeal for failure to take an essential step within prescribed time, but such an application must be brought within 30 days of service. The Respondents did not file such an application, choosing instead a preliminary objection. Rule 107(b) bars that course without leave of Court. The objection was accordingly dismissed and the appeal proceeded on its merits.
Legal principles established
#- On a second appeal, the Court of Appeal confines itself to matters of law only and will not interfere with concurrent findings of fact unless the courts below considered matters they should not have, failed to consider matters they should have, or the decision is perverse
- The power to recall a witness is discretionary and must be exercised judicially, not capriciously or as a matter of course
- An appellate court will only interfere with a discretionary decision on the established grounds: misdirection in law, misapprehension of facts, taking into account irrelevant or failing to take into account relevant considerations, or a decision that is plainly wrong
- A party who has not applied under Rule 86 of the Court of Appeal Rules to strike out an appeal within the prescribed period is barred by Rule 107(b) from raising the competence of the appeal by way of preliminary objection without leave of the Court
Court orders
#- 1.The Respondents' Preliminary Objection under Rules 77(2) and 84(1) of the Court of Appeal Rules is dismissed
- 2.The appeal is dismissed in its entirety
- 3.The Judgment of the High Court at Malindi delivered on 22nd November 2022 is upheld
- 4.Costs of the appeal are awarded to the Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Malindi
- Malindi Civil Appeal Nos. E008 of 2020 and E003 of 2020 (consolidated)
- Jurisdiction invoked
- Second appeal under Section 72(1) of the Civil Procedure Act, confining the appeal to matters of law only
- Consolidated with
- Malindi Civil Appeal No. E008 of 2020, Malindi Civil Appeal No. E003 of 2020 (consolidated in the High Court by order of 14th June 2021)
Relief refused
#Recall of the Respondents' witnesses and taking of evidence afresh
The Appellants fully participated in the hearing, cross-examined the Respondents, and raised no objection at the time; the Kadhi's refusal was a proper exercise of judicial discretion
Ruling that the Kadhi lacked jurisdiction to distribute the estate of Mohamed Said Saar
The Kadhi was alive to the distinction between the two estates and had first to identify the deceased Amer Mohamed's share of his father's estate before distributing it to the Respondents
Appellants' prayer that the judgments of the High Court and the Kadhi be set aside
The appeal lacked merit
Costs
Costs of the appeal awarded to the Respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In sum, the appeal lacks merit and is as such dismissed. We uphold the Judgment of the High Court at Malindi delivered on 22nd November 2022 with costs to the Respondents. It is so ordered.
as a result, the Preliminary Objection is dismissed and accordingly, we shall proceed to consider the appeal on its merits.
While the law makes provision for the recall of a witness, such power is discretionary and must be exercised judicially, and not capriciously, whimsically, or as a matter of course.
the unfettered power of the court to receive additional evidence should be used sparingly and only where it is shown that the evidence is fresh and would make a significant impact in determination of the appeal.
the proceedings before the Kadhi’s Court were conducted in a manner that accorded the Appellant a full opportunity to present his case, to cross-examine adverse witnesses, and to be heard.
on a second appeal, the Court confines itself to matters of law only, unless it is shown that the Courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.
Issues in the judgment
#Internal inconsistency in dates of the Kadhi's Judgment: the narrative refers to a Judgment delivered on 1st October 2020, while the Respondents' submissions refer to a final determination on 20th August 2020 (the date the parties closed their cases), and the disposition upholds the High Court judgment of 22nd November 2022 although the High Court's decision is otherwise described without a delivery date in the narration.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Said & another v Mohamed & 2 others (Civil Appeal E041 of 2023) [2026] KECA 552 (KLR)", Case Analysis (2026). Court of Appeal at Mombasa (succession appeal from Malindi Civil Appeal Nos. E008 of 2020 and E003 of 2020, consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/552/eng@2026-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.