Faraj v Mwawasi & 2 others
The bottom line
#Supreme Court halts estate distribution pending appeal on Islamic law vs. equality rights.
What this practically means
#The Supreme Court has temporarily stopped the distribution of a deceased Muslim man's estate. This pause allows the Court to hear an appeal about whether Islamic inheritance rules can override the constitutional right to equality. The case affects how estates of Muslims who die without a will are shared. The Court said the appeal raises important legal questions that need careful consideration before any final decisions are made.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant's appeal is arguable.
- 2.Whether the appeal would be rendered nugatory if the stay orders sought are not granted.
- 3.Whether it is in the public interest to grant the stay orders.
Key legal issues
#Whether the applicant's appeal raises an arguable point for consideration by the Supreme Court.
The Court found that the question of the interpretation of Article 27 vis-à-vis Article 24(4) of the Constitution as it pertains to the distribution of the estate of a deceased Muslim calls for consideration, making the appeal arguable.
The Court considered the grounds of appeal advanced in the Motion and the appeal itself. It noted that the applicant argued that the Court of Appeal failed to appreciate that Article 27 (right to equality and freedom from discrimination) is subject to the limitation under Article 24(4) of the Constitution regarding Islamic law. The Court held that this issue requires its consideration and therefore the appeal is arguable, without delving into the merits of other grounds.
Whether the appeal would be rendered nugatory if the stay orders are not granted.
The Court found that the deceased's estate may be distributed in terms of the impugned judgment, which is the subject of the pending appeal, and therefore the appeal may be rendered nugatory unless the stay orders are granted.
The Court was persuaded that the estate could be distributed based on the Court of Appeal judgment that is being challenged. It noted that nothing was placed before it to show that any actions taken pursuant to the impugned judgment could be reversed if the appeal succeeds. Therefore, the nugatory aspect was satisfied.
Whether it is in the public interest to grant the stay orders.
The Court found that the determination of the issues in dispute will have a significant bearing on the distribution of the estates of Muslims who die intestate, and therefore it is in the public interest to issue the stay orders.
The Court acknowledged that the appeal raises a question about the application of Islamic law in succession matters, which affects a broader class of persons beyond the parties. This public interest dimension justified granting the stay.
Legal principles established
#- A stay applicant must show the appeal is arguable and would be pointless without the stay.
- Public interest cases require an additional showing that a stay serves the public good.
- An appeal is arguable if it raises a constitutional interpretation question needing Supreme Court review.
- An appeal is nugatory if the estate could be distributed before the appeal is heard.
- Public interest exists when the ruling affects a broader group beyond the parties involved.
Court orders
#- 1.An order of stay of execution of the judgment of the Court of Appeal in Mombasa Civil Appeal No. E043 of 2023 dated 10th November, 2023 is hereby issued pending the hearing and determination of SC Petition No. E035 of 2023.
- 2.An order of stay of the proceedings in High Court Mombasa Succession Cause No. 200 of 2015 is hereby issued pending the hearing and determination of SC Petition No. E035 of 2023.
- 3.An order of stay of further execution of the High Court ruling dated 3rd August, 2023 in High Court Mombasa Succession Cause No. 200 of 2015 is hereby issued pending the hearing and determination of SC Petition No. E035 of 2023 or further orders of this Court, as the case may be.
- 4.Each party shall bear their costs of the Motion.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal at Mombasa
- Mombasa Civil Appeal No. E043 of 2022
- Jurisdiction invoked
- Sections 21 & 23A(1)(a) of the Supreme Court Act (Cap 9B Laws of Kenya) and Rules 31 & 32 of the Supreme Court Rules, 2020
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
An applicant, in that regard, is required to establish that his/her appeal is arguable, and that unless the orders sought are granted, the appeal would be rendered nugatory in the event it succeeds. However, an additional criterion arises where the matter in question has a public interest connotation and in such a case, an applicant is required to also establish that it is in the public interest that the order of stay be granted.
we find that the question of the interpretation of Article 27 vis-à-vis Article 24(4) of the Constitution as it pertains to the distribution of the estate of a deceased Muslim calls for our consideration.
we are persuaded that the deceased’s estate may be distributed in terms of the impugned judgment, the subject of the appeal before this Court, SC Petition No. E035 of 2023, which is pending determination. Consequently, we find that the applicant’s appeal may be rendered nugatory unless the orders sought are granted.
we are alive to the fact that the determination of the issue(s) in dispute in the applicant’s appeal will have a significant bearing on the distribution of the estates of Muslims who die intestate. In the circumstances, we are convinced that it is in the public interest to issue the orders sought.
An order of stay of execution of the judgment of the Court of Appeal in Mombasa Civil Appeal No. E043 of 2023 dated 10th November, 2023 is hereby issued pending the hearing and determination of SC Petition No. E035 of 2023.
An order of stay of the proceedings in High Court Mombasa Succession Cause No. 200 of 2015 is hereby issued pending the hearing and determination of SC Petition No. E035 of 2023.
An order of stay of further execution of the High Court ruling dated 3rd August, 2023 in High Court Mombasa Succession Cause No. 200 of 2015 is hereby issued pending the hearing and determination of SC Petition No. E035 of 2023 or further orders of this Court, as the case may be.
Each party shall bear their costs of the Motion.
Key timeline
#Practical implications
#Stay applications in public interest cases
When seeking a stay in the Supreme Court, you must now explicitly address three criteria: arguability of the appeal, risk of nugatory outcome, and public interest. For succession matters involving Islamic law, highlight how the constitutional balance between Article 27 and Article 24(4) affects a broader class. Prepare to show that distribution would make reversal impossible.
Estate planning for Muslim clients
If you advise Muslim clients on estate planning, note that the Supreme Court is actively considering whether Islamic inheritance rules can limit constitutional equality rights. Until this appeal is decided, intestate succession for Muslims remains uncertain. Encourage clients to make wills to avoid reliance on contested legal interpretations. Monitor this case for changes in succession law.
Your inheritance rights may be affected
If you are a Muslim heir expecting to inherit under Islamic law, this case could change how estates are shared. The Supreme Court is deciding whether constitutional equality rights override traditional Islamic inheritance shares. Until the appeal is heard, estate distributions are paused. If you have a claim, consult a lawyer to understand how this ruling might affect your rights.
Frequently asked questions
#What is the Fatuma Athman Abud Faraj case about in Kenya?+
It is a Supreme Court case about whether Islamic inheritance rules for Muslims who die without a will can override Kenya's constitutional right to equality. The Court has temporarily stopped estate distribution to hear this appeal.
Why did the Supreme Court stop the estate distribution in Kenya?+
The Court stopped distribution because the appeal raises a serious constitutional question about Islamic law versus equality rights. If the estate was shared before the appeal, the case would become pointless. The Court also said the issue affects many Muslims, so a pause serves public interest.
How does this ruling affect Muslim succession in Kenya?+
Until the Supreme Court decides the appeal, estate distributions for Muslims who die without a will are on hold. The final ruling will clarify whether Islamic inheritance rules or constitutional equality rights take priority, affecting how future estates are shared.
Can I still inherit if I am a Muslim in Kenya during this case?+
If you are a beneficiary in a pending succession case, distribution may be delayed until the Supreme Court decides. You should consult a lawyer to understand how this stay affects your specific situation and whether you can still claim your share.
Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kabuito Contractors Ltd v Attorney General[2026] KESC 43 (KLR)19 Jun 2026
Cite this brief
#Cite this brief
Caselaw, "Faraj v Mwawasi & 2 others", Case Analysis (2024). Application E050 of 2023. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2024/61/eng@2024-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.