In re Estate of Kultuma Mohamed Kainda alias Kaltuma Mohamed (Deceased) [2022] KEHC 11129 (KLR)

In re Estate of Kultuma Mohamed Kainda alias Kaltuma Mohamed (Deceased) (Civil Appeal 52 of 2019) [2022] KEHC 11129 (KLR) (23 June 2022) (Judgment)

Neutral citation: [2022] KEHC 11129 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Appeal 52 of 2019

TW Cherere, J

June 23, 2022

Between

Abdalla Omar Awadh

Appellant

and

Ali Mohamed Kisumala

Respondent

(An appeal from the Ruling and Decree in Isiolo Kadhi Succession Cause Number 22 of 2017 by Hon. Abdulhalim H.Athman (PK) dated 03rd May, 2019)

Judgment

Introduction 1. Kaltuma Mohamed Kainda alias Kaltuma Mohamed (deceased) died sometimes on 09th April, 1991.

2. Ali Mohamed Kisumala (Respondent) the son of the deceased petitioned for the grant of letters of administration and indicated that deceased’s estate comprised of LR No. Kiirua/nkando/2606.

3. Letters of Administration Intestate were issued on 03rd March, 2017 and the grant was subsequently confirmed in favour of the Respondent on 13th March, 2018.

4. Subsequently by an application dated 08th April, 2019, Abdalla Omar Awadh (Appellant) who is grandson of the deceased moved the court to cancel title for LR No. Kiirua/nkando/2606 on the basis of a letter dated 30th August, 2018 by Chweya & Associates Advocates to the Land Registrar Meru requesting for the said cancellation and transfer to Appellant. Respondent opposed the application on the ground that the court was not properly moved.

5. By a ruling dated 03rd May, 2019, Appellant’s application dated 08th April, 2019 was dismissed.

6. The Appellant being dissatisfied with the lower court’s decision preferred this appeal and on 23rd May, 2019 filed a Memorandum of Appeal in which he raised three (3) grounds that: -1. The Learned Kadhi erred in concluding that there was no agreement for cancellation of title2. The Learned Kadhi erred in ignoring a letter dated 30th August, 2018 by Chweya & Associates Advocates to the Land Registrar Meru requesting for the said cancellation and transfer to Appellant.3. The Learned Kadhi erred in directing the OCS to investigate the conduct of the Appellant whereas there was no evidence that he had threatened the Respondent

Analysis and Determination 7. I have carefully considered the record, grounds of appeal and submissions made on behalf of the parties. This is a first appeal and in the case of Abok James Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR the duty of this Court as a first appellate court was stated to be as follows:“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.”

8. From the Appellant’s submission, I understand him to say that the succession cause in the matter the subject of this appeal proceeded in his absence and that he as the rightful heir was disinherited.

9. It has been said time and again that jurisdiction is everything. If a trial court smells a whiff of want of jurisdiction in a matter before it, it must immediately down its tools. As stated by the court of appeal in the case Kabitao Karanja Appellant Vs The Attorney General[1999] eKLR, “Any order made without jurisdiction is a nullity and no amount of legal ingenuity can turn that into a valid order. What is a nullity remains a nullity......?”

10. From the foregoing, I find that the learned Kadhi acted lawfully in rejecting an invitation to cancel title in LR No. Kiirua/nkando/2606 for had that order been issued, it would have been issued without jurisdiction and it would have been a nullity.

11. The record reveals that there was no evidence that the Appellant had many any threats to the Respondent and the order that the OCS investigate the complainant was therefore against the weight of evidence.

12. For the reasons given on the assessment above, it is hereby ordered:1. The 1st and 2nd grounds of appeal have no merit and is dismissed. This is not however to say that the Appellant has no remedy. He is at liberty to appropriately move the court clothed with jurisdiction for cancellation of title or for revocation of the grant as he may deem necessary.2. The order directing the OCS to investigate the conduct of the Appellant is set aside3. Each party shall bear its own costs.

DATED IN MERU THIS 23RD DAY OF JUNE 2022WAMAE. T.W. CHEREREJUDGEAppearancesCourt Assistant - Morris KinotiAppellant - In personRespondent - In person