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KadhiPartially AllowedNot stated in the judgment· [2017] KEKC 2 (KLR)

Omar Galana Hiribae v Alice Adhiambo Alucho [2017] KEKC 2 (KLR)

Kadhis' Court
24 August 2017
MSMursal M Sizi
461 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Kadhis' Court ruled that a widow married under customary law cannot inherit from a Muslim estate because Islamic law requires a valid Islamic marriage.

What this practically means

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Executive summary

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This is a review ruling of the Kadhis' Court in a succession matter previously heard and determined by the former Kadhi, Sheikh Rashid Kokonya, roughly one year earlier. The applicant, Omar Galana Hiribae, the biological father of the deceased Fumo Omar Hiribae (who died on 2 June 2013 at Taufiq Hospital Malindi), applied by an application dated 27 July 2017 seeking an order that the respondent, Alice Adhiambo Alucho, stop enjoying the deceased's property and gratuity, and that he be recognised as the legal heir. He argued that the previous applicant, Agnes Ndwari Balesa, lost her succession case because she was not a Muslim, and that the respondent produced no document or witness confirming a legal marriage to the deceased and did not observe the eddah period after the deceased's death. The respondent asserted in an affidavit dated 6 December 2016 that her father-in-law refused an Islamic marriage, so the parties married customarily, which she said made her the legal wife. In cross-examination by the court she admitted her marriage was not under Islamic law but customary. The Kadhi held that under Islamic sharia marriage is the major condition for a spouse to inherit, that customary marriage is not allowed in Islamic law, and that the respondent's admission was powerful evidence. The court ordered that the respondent and her children are not entitled to inherit from the deceased's property, that the public trustee cancel the respondent's name from the beneficiaries list, but that the applicant should not claim the previous distribution of the estate already done. A right of appeal within 30 days was granted.

Key legal issues

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01

Whether the respondent's customary marriage to the deceased qualified her to inherit under Islamic law

Holding

The respondent and her children are not entitled to inherit because her marriage was customary, not Islamic, and marriage is a major condition for inheritance

Reasoning

The respondent admitted in cross-examination that her marriage was not under Islamic law but under customary law. The court found she was unaware that customary marriage is not allowed in Islamic law, and since the Kadhis' Court follows Islamic jurisprudence, her marriage could not found a right of inheritance. Her own admission was treated as powerful evidence against her claim.

p. 1
02

Whether the applicant was entitled to relief in the review

Holding

The applicant succeeded in having the respondent excluded from inheritance and her name removed from the beneficiaries list, but failed in seeking a claim to the previously distributed estate

Reasoning

The court accepted the review and ordered exclusion of the respondent and cancellation of her name from the beneficiaries list, but expressly barred the applicant from claiming the previous distribution already done, thereby preserving the earlier distribution as between the remaining heirs.

p. 1

Legal principles established

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  • Under Islamic sharia, a valid marriage is a major condition for a spouse to inherit from the deceased's estate
  • Marriage under customary law is not recognised as a valid marriage in Islamic law for purposes of inheritance in the Kadhis' Court
  • An admission is powerful evidence under Islamic jurisprudence

Court orders

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  1. 1.The respondent and her children are not entitled to inherit from the deceased's property
  2. 2.The public trustee should cancel the respondent's name from the beneficiaries list
  3. 3.The applicant should not claim the previous distribution of the estate which was already done
  4. 4.Right of appeal within 30 days (R/A 30 days)
Jurisdiction invoked
Islamic law succession jurisdiction of the Kadhis' Court; the court states 'this Islamic court follow Islamic jurisprudence'

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Omar Galana Hiribae v Alice Adhiambo Alucho [2017] KEKC 2 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2017/2/eng@2017-08-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.