In re Estate of Joseph Kiptoo Cheruiyot alias Abubakar (Succession Cause E002 of 2024) [2024] KEKC 23 (KLR)
The bottom line
#A Kericho Kadhi's Court threw out an eviction bid because the other side were not Muslim and the applicants had no grant of representation.
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 Kadhi's Court has jurisdiction over the Application given Article 170(5) of the Constitution, where the Respondents do not profess the Muslim faith and do not submit to the Court's jurisdiction
- 2.Whether the Petitioners, without a Grant of Letters of Administration or Grant of Representation, had capacity to prosecute the application on behalf of the estate of Joseph Kiptoo Cheruiyot alias Abubakar
- 3.Whether the Kadhi's Court can grant the eviction and restraining orders sought, or whether such orders fall within the exclusive jurisdiction of the Environment and Land Court
Key legal issues
#Jurisdiction of the Kadhi's Court under Article 170(5) of the Constitution
The Court lacks jurisdiction because the Respondents do not profess the Muslim faith and do not submit to the Kadhi's Court's jurisdiction, and the Petitioners did not challenge that assertion
Article 170(5) and Section 5 of the Kadhi's Court Act limit the Kadhi's Court to questions of Muslim law where all parties profess the Muslim religion and submit to the Court. The Respondents' counsel categorically stated they neither profess the faith nor submit, and the Petitioners did not challenge this, confirming it. The Kadhi acknowledged the submission clause could be abused to frustrate parties, citing the Islamic principle that deeds are judged by intentions, but found no basis to question the Respondents' sincerity here.
Capacity of the Petitioners to prosecute the suit for a deceased's estate
The Petitioners lacked capacity because they had not obtained a Grant of Representation
The Kadhi's Courts Act does not govern administration of estates; that is provided by the Law of Succession Act Cap 160 and the Probate and Administration Rules. Section 45(1) of the Law of Succession Act prohibits intermeddling with a deceased's free property without authority. As the Petitioners held no Grant of Representation when filing, they had no capacity to institute the application.
Whether the Kadhi's Court can grant eviction orders over land
The Court held land matters are not exclusive to the Environment and Land Court, and that where there is no dispute over land ownership, the Kadhi's Court has jurisdiction to grant protective orders for a deceased's estate
Sections 13(4) and 26(3) of the Environment and Land Court Act show land matters are not exclusive to that Court. The Kadhi reasoned that in succession matters involving land where ownership is undisputed - for example beneficiaries intermeddling with a deceased's land - beneficiaries may seek orders like those sought here from the Kadhi's Court. However, this reasoning did not save the application since the objection succeeded on the faith/submission and capacity grounds.
Legal principles established
#- For a Kadhi's Court to entertain a matter, all parties must profess the Muslim faith and submit to the Court's jurisdiction; however, a party cannot abuse the submission requirement to defeat the ends of justice, and the Court may inquire into the sincerity of a party's refusal to submit
- Where there is no dispute over ownership of land, the Kadhi's Court has jurisdiction to protect a deceased Muslim's estate from intermeddling by beneficiaries
- A party who has not obtained a Grant of Representation lacks capacity to institute proceedings on behalf of a deceased person's estate
- Matters involving land are not exclusively within the Environment and Land Court by virtue of Section 13(4) and 26(3) of the Environment and Land Court Act
Court orders
#- 1.The Respondents' Preliminary Objection is allowed on the grounds that the Petitioners do not profess the Muslim faith and that the Petitioners did not follow due process before filing their application
- 2.The Petitioners' Notice of Motion dated 19th August 2024 fails by dint of the allowed Preliminary Objection
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 170(5) of the Constitution; Section 5 of the Kadhi's Court Act; Section 29 of the Waqf Act 2022
Relief refused
#Order restraining the Respondents from trespassing on, interfering with or exploiting property titled Kericho/Kapsoit/266
Preliminary objection allowed - the Petitioners do not profess the Muslim faith and lacked capacity for want of a Grant of Representation
Order directing the Respondents to vacate the parcel Kericho/Kapsoit/266
Same grounds - objection on jurisdiction and capacity succeeded
Order directing the OCS, Ainamoi Police Station to enforce the orders
Same grounds - objection on jurisdiction and capacity succeeded
Costs
No costs order recorded in the judgment
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.
That said, the Respondents' objection is allowed on grounds that the Petitioners do not profess the Muslim faith and further that the Petitioners did not follow due process before filing their application.
Jurisdiction is everything. Without it, a court has no power to make one more step.
For a Kadhi's Court to entertain any of the matters which it has jurisdiction over, all parties must first profess the Muslim faith and also submit to the jurisdiction of the Court
My opinion is that in matters where there is no dispute over ownership of land, the Kadhi's Court has jurisdiction.
I agree with the Respondents that the Petitioners while instituting their application had not been issued with Grant of Representation by the Court and thus had no capacity to file the application.
Issues in the judgment
#The court cites 'Re Estate of Wario Guracha Dambi' as holding the Kadhi's Court had jurisdiction despite a party not submitting, and reasons the submission clause may be abused; but the Respondents' unchallenged statement of non-profession was accepted without inquiry into sincerity, creating tension with the court's own reasoning on abuse of the clause
The judgment refers to the objection as both a single Preliminary Objection and Preliminary Objections, and the parties are called both Petitioners and Applicants inconsistently
TheRespondents' counsel submission misnames the statute as 'Environment and Land Contract' and the judgment records the Environment and Land Court Act inconsistently as 'Environment and Land Act'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In re Estate of Joseph Kiptoo Cheruiyot alias Abubakar (Succession Cause E002 of 2024) [2024] KEKC 23 (KLR)", Case Analysis (2024). Not stated in the judgment (Notice of Motion dated 19th August 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2024/23/eng@2024-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.