Can a person file an appeal in which there is effectively no respondent, challenge the manner in which a court handled a case and win?
Yes. It happened last week.
Salamant Bibi Sheikh successfully challenged a 2017 High Court decision after arguing before the Court of Appeal that the judge had reopened four succession matters that had already been concluded and grants confirmed.
A three-judge bench of the appellate court described the appeals as “peculiar”, noting that Ms Sheikh’s complaint was directed at the High Court itself over the manner in which it dealt with the four applications.
In the case, Ms Sheikh had filed applications dated March 10, 2017, in four related succession matters.
The first, Succession Cause No. 392 of 2016, concerned the estate of Noor Mohamed Sheikh. She sought rectification of the grant issued to her on June 16, 2016 and confirmed on November 30, 2016, to reflect the deceased’s name as Noor Mohammed Sheikh alias Noor Mohamed son of Rehmat Ali.
In Succession Cause No. 393 of 2016, involving the estate of Rehmat Ali Sheikh, she sought to have the deceased’s name rectified to Rehmat Ali.
In Succession Cause No. 394 of 2016, involving the estate of Abdul Rashid Sheikh, she sought to change the name from Abdul Rashid Sheikh to Abdul Rashid son of Rehmat Ali.
In the fourth matter, Succession Cause No. 395 of 2016, involving the estate of Hussein Bibi Sheikh, she sought to have the name changed from Hussein Bibi to Hussein Bibi Sheikh alias Hussein Bibi wife of Faiz Mohamed son of Rehmat Ali.
The record showed that the property was the sole asset in all four estates and was registered as L.R. No. 209/3605 Nairobi, situated at South B, before another reference, L.R. No. 9333, was reflected in the title.
The grants in the four succession matters had already been confirmed on November 30, 2016 by a different judge of the High Court.
In seeking rectification, Ms Sheikh told the court that the names appearing on the certificate of title for the estate property differed from those she had used when applying for the grants and their confirmation.
The applications were heard by the High Court in March 2017. However, in a ruling delivered in June 2017, the judge did not determine the applications for rectification of the grants and certificates of confirmation.
Instead, the court directed that the letters of administration in each of the four cases be served on the heirs of the siblings and children of Rehmat Ali Sheikh.
The judge also barred any dealings with the properties and directed Ms Sheikh to conduct a search at the probate registry in Leicester, England, to establish whether grants had been issued in respect of the estates of the persons named in the title deeds.
Ms Sheikh moved to the Court of Appeal, arguing that the High Court had erred by reopening succession proceedings that had already been concluded and grants confirmed by other judges.
She also argued that there had been no objection to either the grants of letters of administration or their confirmation in the four succession matters.
Ms Sheikh further faulted the High Court for directing her to conduct searches in England without a legal or factual basis.
In its decision, the Court of Appeal noted that the High Court has power under Section 76 of the Law of Succession Act to revoke or annul a grant where, among other grounds, it was obtained fraudulently, was defective in substance or was obtained through an untrue allegation.
The judges noted that Ms Sheikh had placed before the court information showing that the deceased persons and their families moved to the United Kingdom in 1972 and settled in Leicester.
Their death certificates showed that all four died in Leicester, with their deaths being reported to the Death Registry by their children.
The court also noted that Ms Sheikh was a granddaughter of Rehmat Ali Sheikh, while Abdul Rashid Sheikh and Noor Mohamed Sheikh were her uncles and Hussein Bibi was her aunt by marriage.
The record further showed that Ms Sheikh’s husband, Mohamed Akram Sheikh, was her cousin and a grandson of Rehmat Ali.
The appellate judges said the High Court judge had considered the documents on record, including the consents filed by the parties, before confirming the grants.
“We note from the record that when the matters came up before the Court, Ougo, J. considered the documents on the record, including the consents filed, before issuing orders confirming the grants,” said the court.
The judges found that the High Court had erred by reopening the matters while dealing with an application that merely sought rectification of the grants to correct the names and the description of the property belonging to the deceased.
They said this was done without an application seeking revocation of the grants and certificates of confirmation under Section 76 of the Law of Succession Act.
“We are therefore satisfied that the appeal is merited, and we hereby allow it,” said the court.
