Swabra Ahmed Ramadhan v Ali Ramdhan Said, Zubeida Ramdhan Said & Mariam Khamis Kazab [2017] KEHC 9799 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

FAMILY DIVISION

CIVIL APPEAL NO. 45 OF 2014

SWABRA AHMED RAMADHAN……….APPELLANT

VERSUS

ALI RAMDHAN SAID

ZUBEIDA RAMDHAN SAID

MARIAM KHAMIS KAZAB………....RESPONDENT

RULING

1. Swabra Ahmed Ramadhan, the Appellant herein filed an Appeal from the judgement and decree of the Hon. Sheikh Twalib B. Mohamed dated 13. 9.12 in Kadhi’s Court Succession Cause No. 91 of 2008. Ali Ramdhan Said, Zubeida Ramdhan Said and Mariam Khamis Kazab the Respondents herein have by way of a Preliminary Objection dated 10. 6.16 objected to the said Appeal filed on the  grounds that:

1. That the Appeal is incompetent, misconceived and otherwise an abuse of the due process of this Honourable Court.

2. That the said Appeal offends both the word and spirit of the clear and mandatory provisions of Order 42 of the Civil Procedure Rules.

3. That the said Appeal is time barred and was struck out on the 18th day of December 2013 by Honourable Justice M. Odero.

2. When the matter came up for hearing on 15. 6.16, the Appellant sought time to file a response to the Preliminary Objection and was granted 2 weeks to do so. The matter was stood over to 6. 9.16. On that day however, the Appellant did not attend Court and the matter was stood over to 23. 11. 16. On 23. 11. 16 and later on 21. 6.17, none of the parties attended Court and the matter was adjourned. The Appellant then fixed the matter for hearing on 28. 9.17 but failed to attend Court. The Respondents therefore proceeded with their Preliminary Objection.

3. Counsel for the Respondents submitted that the Appeal was time barred having been filed out of the 30 days period allowed by law. It was submitted that the Appeal was filed on 18. 2.13 which was 5 months after the judgement of 13. 9.12. The Appellant had filed Appeal No. 8 of 2013 outside the time allowed and that the same was dismissed by Hon. Odero, J on 18. 12. 13. Counsel contended that the Appeal herein is incompetent and that the same ought to be struck out.

4. I have given due consideration Counsel’s submission. The record shows that the Memorandum of Appeal herein is dated 19. 11. 14 and was filed on 27. 11. 14. The Appeal was admitted on 12. 4.16. It is therefore not clear to me which Appeal Counsel for the Respondents is referring to that was struck out. The Appeal herein is Civil Appeal No. 45 of 2014 that was filed on 27. 11. 14 and not Civil Appeal No. 8 of 2013 filed on 18. 2.13. If there was another appeal filed by the Appellant before the instant Appeal, then this Court is not aware of the same. I have looked at the record herein and there is nothing to show that there was another appeal. Counsel also did not assist the Court by providing evidence of Appeal No. 8 of 2013 which was struck out.

5. In the circumstances, I find that the Preliminary Objection raised by the Respondents herein lacks merit and the same is hereby dismissed with no order as to costs.

DATED, SIGNED and DELIVERED in MOMBASA this 6th day of October 2017

_______________________

M. THANDE

JUDGE

In the presence of: -

………………………………………………………… for the Appellant

……………………………………………………… for the Respondent

……………………………………………………..…….. Court Assistant