Bodle v Egge & 4 others (Civil Appeal 130 of 2018)  KEHC 13540 (KLR) (Family) (30 September 2022) (Judgment)
Neutral citation:  KEHC 13540 (KLR)
Republic of Kenya
Civil Appeal 130 of 2018
MA Odero, J
September 30, 2022
Hassan Haji Egge Bodle
Adam Mohammed Egge
Farhan Ahmed Egge
Ali Ahmed Egge
Abdi Ahmed Egge
Mohamed Yasin Mustafa
1.Before this court is a memorandum of appeal dated December 14, 2018 challenging the ruling delivered on November 30, 2018 by honourable Kadhi Abduljabal in Nairobi Misc No 38 of 2018: Estate Of Hussein Egge Bodle (deceased).
2.The appeal was canvassed by way of written submissions. The appellant filed written submissions dated March 25, 2021 whilst the respondents relied upon their written submissions dated May 11, 2021.
3.The matter before the Kadhi Court was Succession Cause No 38 of 2019, which involved the estate of Hussein Egge Bodle (herein after the ‘deceased’), who died intestate on April 2, 1989. A death certificate serial no 249411 is annexed to the record. The deceased who had no wife or children was survived by five (5) siblings as follows:-i.Muhamud Egge Bodle – Brotherii.Ahmed Egge Bodle – Brotheriii.Abdi Egge Bodle – Brotheriv.Hassan Egge Bodle – Brotherv.Fatuma Egge Bodle – Sister
4.The deceased had under an oral will left all his property to his brother Abdi Egge Bodle. The said Abdi Egge Bodle applied in the Kadhi court for letters of administration to the estate of the deceased. A grant of letters of administration was issued to the appellant on January 23, 2003.
5.Thereafter two of the deceased brothers Mohamed Egge Boddle and Ahmed Egge Bodle also passed away. Their children laid claim to the estate of the deceased on grounds that since the deceased had no wife or children therefore under Islamic Law his estate ought to have devolved to all the four (4) brothers of the deceased equally.
6.Abdi Egge Bodle who held a grant to the estate of the deceased filed a case in the Kadhi Court being Succession No 4 of 2015. On August 12, 2015 the parties in that succession cause entered into a consent (see page 59 of the record of appeal) as follows:-
7.The above consent agreement was adopted as a judgment in the Kadhi Court.
8.Thereafter Abdi Egge Bodle passed away on July 7, 2017. Upon his death, the children of Mohamed Egge Boddle and Ahmed Egge Bodle (the respondents herein) filed in the Kadhi court succession cause no 38 of 2018 seeking to revoke the grant which had by consent been issued to Abdi Egge Bodle. They filed a chamber summons dated April 26, 2018 seeking revocation of the grant which had been issued to Abdi Egge Bodle on the following grounds:-
9.The appellant herein Hassan Haji Egge Bodle who is the younger brother of the deceased opposed the application in the Kadhi court. In opposing the application, the appellant laid claim to the estate of the deceased who did not have any children. The respondents on their part insisted that the grant issued to Abdi Egge Bodle ought to be revoked and the property of the deceased should devolve equally to all the brothers.
10.The learned hon Kadhi heard both parties and delivered a ruling dated November 30, 2018 revoking the grant of letters of administration which had been issued to Abdi Egge Bodle on January 23, 2003. The Kadhi directed that a fresh petition be filed regarding the estate of the deceased.
11.The appellant being dissatisfied by the ruling delivered by the hon Kadhi on January 23, 2003 filed this undated Memorandum of appeal which appeal was premised upon the following grounds:-
12.The appeal was opposed by the respondent who urged that the decision of the hon Kadhi revoking the grant issued to Abdi Egge Bodle be upheld.
Analysis and Determination
12.I have carefully considered the appeal filed before the court, the record of appeal dated July 30, 2020 as well as the written submissions filed by both parties. The issues which arise for determination are as follows:-(1)Whether the respondent have locus standi in this matter.(2)Whether the application filed before the Kadhi court was res judicata(3)Whether the appeal has merit.(1)Locus standi
13.The appellant submits that the deceased Hussein Egge Bodle was survived by four brothers and one sister. The grant was issued to Abdi Egge Bodle one of the brothers of the deceased. Following the demise of the administrator the respondent being one of the children of the other siblings of the deceased filed the case in the Kadhi court seeking to revoke the grant issued to Abdi Egge Bodle. The appellant submits that the respondents have no locus standi and/or interest in the estate of the deceased.
14.The respondent on their part submit that the issue of ‘locus standi’ was dealt with conclusively by the hon Kadhi who recognized the respondents as beneficiaries to the estate of the deceased. That following the demise of all the siblings of the deceased under Islamic law the respondents are presumed to take over the share of the estate that would have gone to their late parents. The respondents argue that since the estate had not been fully distributed the children of the deceased beneficiaries are entitled to inherit the share of the estate that would have gone to their respective parents.
15.‘Locus Standi’ is a Latin term which literally means ‘Place of Standing’. It refers to the right of a party to participate and be heard in a particular suit or action. Black’s law Dictionary 10th Edition at paragraph 1084 define ‘Locus Standi’ as –
16.Similarly Osborn Concise Law Dictionary 11th Edition defines the term ‘Locus Standi’ as follows:-
17.The appellant readily concedes that the respondents are the children of Muhamud Egge Bodle (deceased) and Ahmed Egge Bodle (deceased) both of who were brothers of the deceased Hussein Egge Bodle whose estate is under consideration.
18.In determining the question of locus standi the hon Kadhi in his ruling dated November 30, 2018 stated as follows:-
19.The hon Kadhi therefore found that the respondents had sufficient locus standi in this matter. I am in agreement with the above finding of the hon Kadhi. The respondents being the children of the late siblings of the deceased are considered beneficiaries to the estate of the deceased, both under Islamic Sharia Law and by virtue of section 39(1)( c) of the Law of Succession Act cap 160 which provides that –(a)father; or if dead(b)mother; or if dead(c ) brothers and sisters, and any child or children of deceased brothers and sisters, in equal shares; or if none(d)half-brothers and half-sisters and any child or children of deceased half-brothers and half-sisters, in equal shares; or if none(e)the relatives who are in the nearest degree of consanguinity up to and including the sixth degree, in equal shares.” (own emphasis)
20.I therefore find and hold that the respondents do have a legal interest in the estate of the deceased uncle and such have requisite locus standi to appear in this matter.
(2) Res Judicata
21.The appellant submits that the application dated April 26, 2018 filed by the respondents before the hon Kadhi seeking revocation of the grant issued to Abdi Egge Bodle was sub judice and res judicata given that orders regarding the administration and distribution of the estate of the deceased had already been made by the hon Kadhi in Succession Cause No 4 of 2015 which involved the same estate. The doctrine of ‘Res Judiata’ is defined by section 7 of the Civil Procedure Act cap 21, laws of Kenya as follows:-
22.In the case of Kenya Commercial Bank Ltd vs Benjoh Amalgamated Ltd  eKLR, the court expounded on the conditions for Res Judicata as follows:-
23.I have perused the record of appeal. It is not in dispute that there existed a suit being Succession Cause No 4 of 2015 which involved the estate of the same deceased Hussein Egge Bodle. On the question of Res Judicata the hon Kadhi in his ruling of November 30, 2018 observed as follows:-
24.There is no evidence that Succession Cause No 4 of 2015 was fully determined. As such, I find that this matter is not Res Judicata.
25.In their application before the hon Kadhi the respondent sought for the revocation of the grant issued to Abdi Egge Bodle on grounds that the same was obtained fraudulently. In their pleadings before the Kadhi court the respondents averred that a report regarding the irregularity of said letters of administration was made to the directorate of criminal investigation, land fraud unit. The investigating officer one Thomas Kareithi gave evidence and made recommendations. The respondents alleged that the court file for Succession Cause No 4 of 2015 suspiciously went missing. That there exists no record of the gazettement and confirmation of the grant. That the officer who allegedly issued the letters of administration dated January 23, 2003 was dismissed.
26.The respondents therefore alleged that the administrator purported to distribute the estate without a confirmed grant contrary to the provision of section 55(1) of the Law of Succession Act.
27.In his ruling the hon Kadhi found that no record existed of gazettement and confirmation of the grant. The hon Kadhi was satisfied that the evidence of the alleged fraud was corroborated by the investigating officer from the directorate of criminal investigation. Finally, the hon Kadhi found that the appellant had failed to prove the authenticity of the grant. As such, he ordered that the grant be revoked.
28.I find no reasons to fault the decision of the hon Kadhi. The appellants have not demonstrated that the grant was erroneously revoked. Accordingly, I find no merit in this appeal. The same is hereby dismissed in its entirety. This being a family matter each side will bear its own costs.
DATED IN NAIROBI THIS 30TH DAY OF SEPTEMBER, 2022.........................................MAUREEN A. ODEROJUDGE