Republic v Kadhi (Witu) & H M A Ex-parte B T N [2017] KEHC 564 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MALINDI

JUDICIAL REVIEW APPLICATION NO. 11 OF 2017

REPUBLIC................................................APPLICANT

AND

B T N......................................EX-PARTE APPLICANT

VERSUS

THE KADHI (WITU).............................RESPONDENT

H M A..........................................INTERESTED PARTY

JUDGEMENT

1. Through the Notice of Motion dated 24th April, 2017 the ex-parte Applicant, B T N prays for an order removing into this court and quashing the judgement of Witu Kadhi’s Court in so far as it makes orders touching on property and loan repayment.  He also prays for costs of the application.

2. A perusal of the grounds on the face of the application and the affidavit sworn by the ex-parte Applicant (“the Applicant”) shows that the Applicant faults the Kadhi for making a determination on issues not before the court.  It is also the Applicant’s case that the Kadhi surpassed his jurisdiction by making a determination of ownership of property which is a preserve of the Environment and Land Court; that the Kadhi lacked jurisdiction to order the sub-division of the matrimonial home or to make an order for the construction of a new house; that the Kadhi surpassed his jurisdiction by ordering repayment of loans; and that the judgement of the Kadhi’s Court  is unconstitutional and contrary to the Kadhis’ Court Act, Cap. 11.

3. The brief background of the matter as disclosed to this court by the Applicant is that he divorced his wife H M A, the Interested Party herein and moved the Kadhi’s Court at Witu for her removal from the house after e and that is when the Kadhi made the orders complained of by the Applicant.

4. The Respondent, the Kadhi’s Court (Witu) did not respond to the application.  There is also no proof of service of the application upon the Respondent.

5. The Interested Party opposed the application by first filing a preliminary objection to wit that the application fails to adhere to the mandatory provisions of Order 53 Rule 2 of the Civil Procedure Rules.  Secondly, the Interested Party filed grounds of opposition in which he contends that the instant application does not conform to the leave granted on 3rd April, 2017 to the Applicant to commence these judicial review proceedings.  According to the Interested Party the leave granted did not extend to the order issued by the Kadhi directing the Applicant to make loan repayment on her behalf.

6. When the matter came up for hearing the advocates opted to dispose of the same by making oral submissions.

7. It was submitted for the Applicant that leave to commence judicial review proceedings was granted on 3rd April, 2017.  Counsel submitted that the jurisdiction of a Kadhi’s Court is limited to succession and personal matters concerning parties who subscribe to the Islamic faith.   In his view, the Kadhi dealt with the issue of ownership of property and ordered that the Applicant’s house be sub-divided which issue was not before the court.

8. On his part the advocate for the Interested Party submitted that the application for leave was filed on 19th March, 2017 which was seven months after the judgement in issue was delivered on 15th September, 2016.  Counsel asserts that this was contrary to Order 53 Rule 2 of the Civil Procedure Rules, 2010 which requires that in an application for an order of certiorari leave be sought within six months from the date of the impugned decision.  Further, that the leave granted was only in relation to the order on property and not the order on loan repayment.

9. In response, counsel for the Applicant conceded that the leave to commence judicial review proceedings granted by the court did not include authority to challenge the order directing the Applicant to make loan repayment.  He therefore indicated that he was abandoning the challenge to the order directing the Applicant to make loan repayment on behalf of the Interested Party.

10. Counsel for the Applicant emphasized that leave to commence judicial review proceedings is granted at the discretion of the court and the court having considered the material placed before it exercised its discretion to grant leave in Miscellaneous Application No. 10 of 2017.  He urged that the substantive notice of motion cannot now be challenged and the proper thing to do was for the Interested Party to file a formal application to set aside the leave granted.  He concluded that there being no such application this court can only consider the Applicant’s notice of motion.

11. The first question is whether leave was properly granted in this matter.  If it is found that leave was properly granted then the next question would be whether the Applicant has established grounds for issuance of the orders sought.

12. Although the Applicant does not use the term certiorari in his application, it is clear that only an order of certiorari can achieve the result he desires namely the calling into this court of the Kadhi’s order and the quashing of the same.

13. According to Order 53 Rule 2 of the Civil Procedure Rules, 2010, leave “shall not be granted to apply for an order of certiorari to remove any judgement, order, decree, conviction or other proceeding for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceeding or such shorter period as may be prescribed by any Act.”  The requirement is founded upon Section 9(3) of the Law Reform Act, Cap. 26.

14. It is not disputed that the decision of the Kadhi was made on 15th September, 2016.  The application for leave is dated 31st March, 2017 and the leave was granted on 3rd April, 2017.  Leave was thus granted outside six months from the date of the impugned orders.

15. The Applicant has pointed out that the Interested Party ought to have filed an application seeking to set aside the leave granted to him.  His argument is not without basis.  In Njuguna v Minister for Agriculture [2000] 1EA 184 at page 186 the Court of Appeal noted that:

“It cannot be denied that leave should be granted, if on the material available the court considers, without going into the matter in depth, that there is an arguable case for granting leave.  The appropriate procedure for challenging such leave subsequently is by an application by the Respondent under the inherent jurisdiction of the court, to the Judge who granted leave, to set aside such leave.”

16. In my view however, the question of the grant of leave being a matter that touches on the court’s jurisdiction to handle the matter, the issue can be raised any time in whatever manner.  Where it is shown that a court has no jurisdiction, the court must down its tools.  In this matter I find that the leave granted did not comply with the statutory provisions already cited.  Hence this court has no jurisdiction to entertain a matter that fails to comply with statutory provisions.

17. In the circumstances of this case I find that leave to commence judicial review was granted in error.  The preliminary objection is therefore allowed and the leave granted set aside.  The Applicant’s notice of motion should therefore be dismissed at this stage.

18. I know that having found that I have no jurisdiction to handle this matter I should down my tools at this stage.  However, for the benefit of the parties I will state my position in respect to the notice of motion.

19. The orders issued by the Kadhi are:

“1. The petitioner to pay Ksh. 3,000 per month for cosmetics only not for food, clothes and medication.

2. The petitioner to pay Ksh. 5,000 per month for the costs of breastfeeding the child but this will stop after weaning of the child or upon the agreement of the parties before this honorable court.  This should start this month.

3. The petitioner to continue paying the loan of the defendant and completing the cupboard for dowry as per the agreement.

4. The petitioner to divide the matrimonial home into two halves so that the defendant can stay and take care of her child peacefully.  But the defendant will shift to her permanent home after the petitioner has completed the house.

5. The petitioner is not entitled to the costs of this suit.

6. No other relief granted.”

20. In directing the Applicant to construct a house for the Interested Party, the Kadhi observed that this was a gift in accordance with Islamic teachings.  The decision was in line with the personal laws of the parties who were before him.  I also note that the same acted as an order for provision of shelter to the child.  There is therefore nothing unlawful or unconstitutional in the order.  It is possible that the decision could have been overturned on appeal.   However, in so far as this matter is concerned the Applicant has not demonstrated illegality, irrationality or procedural impropriety in order to enable this court to engage its judicial review mandate.

21. It is therefore clear that even if the grant of leave was proper, the substantive application is still without merit.  The end result is that the leave granted to the Applicant to commence these judicial review proceedings was erroneous as it was granted in breach of Order 53 Rule 2 of the Civil Procedure Rules, 2010.  It is also apparent that the Applicant’s substantive Notice of Motion dated 24th April, 2017 is without merit.  These proceedings are thus struck out.

22. In light of the relationship between the Applicant and the Interested Party, and bearing in mind that the Respondent did not participate in the matter, I direct the parties to meet their own costs of the application.

Dated, signed and delivered at Malindi this 3rd day of November, 2017.

W. KORIR,

JUDGE OF THE HIGH COURT