In re Estate of Mohamed Kassim (Deceased) (Succession Cause 117 of 2007) [2017] KEKC 19 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Leilah Gasana, the widow of Hassan Mohamed Kassim, should be included as a beneficiary of his estate
- 2.Whether Kassim Hassan Mohamed, born four years before the marriage of his putative parents, is a legal heir of Hassan Mohamed Kassim
- 3.Whether Anwar Hussein Mohamed Kassim should be added to the list of heirs of Hussein Mohamed Kassim
- 4.Whether the estate properties should be sold to pay the shares of the petitioner, Nazir and Anwar Hussein Mohamed Kassim
Key legal issues
#Whether Kassim Hassan Mohamed is a legal heir of Hassan Mohamed Kassim
He is not a legal heir and cannot inherit because he was born in 1975, four years before the 1979 marriage of his putative parents
The court noted it had not examined Kassim Hassan Mohamed's birth certificate in the original judgment, but the issue of his heirship had been framed for determination. Upon the review application, the birth record showed he was born in 1975 while the marriage occurred in 1979. Under the law of inheritance applicable, a child born before the marriage of his putative parents is not a legal heir of the deceased and is excluded from the distribution.
Whether the omission of the widow Leilah Gasana from the list of beneficiaries could be corrected
The omission was an oversight and a clear error on the face of the record, and was corrected on review, the widow receiving 1/8 of the deceased's 2/9 share
The respondents sought review of the judgment of January 29, 2015 on the ground that the court had found Leilah Gasana to be the wife of Hassan Mohamed Kassim but had failed to include her among the beneficiaries. Counsel for the petitioner did not oppose the application. The court found the omission to be an error apparent on the face of the record and redistributed the deceased's share, allocating 1/8 to the widow and 7/8 to the son Mohamed Hassan Mohamed.
Whether Anwar Hussein Mohamed Kassim should be added as an heir of Hussein Mohamed Kassim
The addition was not contested and was granted; his 2/9 share devolves to his seven heirs
The petitioner's Notice of Motion dated April 26, 2016 sought the addition of Anwar Hussein Mohamed Kassim to the list of heirs of Hussein Mohamed Kassim on the ground that he had been inadvertently left out of the final list of heirs although his name appeared in the petition. No party contested the addition. The court granted it and apportioned his 2/9 share among his four sons at 2/11 each and three daughters at 1/11 each, consistent with the distribution pattern already adopted.
Legal principles established
#- A child born before the marriage of his putative parents is not a legal heir entitled to inherit from the father for purposes of inheritance under Muslim law
- A court may review and correct an omission of a beneficiary from the list of heirs as an error on the face of the record
Court orders
#- 1.The errors in the judgment of January 29, 2015 are corrected by review: Leilah Gasana is included as a beneficiary of Hassan Mohamed Kassim's estate and Kassim Hassan Mohamed is excluded as a legal heir
- 2.The 2/9 share of Hassan Mohamed Kassim (Kes 5,555,555.56) devolves with 1/8 (Kes 694,444.44) to his widow Leilah Gasana and 7/8 (Kes 4,861,111.12) to his son Mohamed Hassan Mohamed
- 3.Anwar Hussein Mohamed Kassim is added as a legal heir and beneficiary of the estate of Hussein Mohamed Kassim, his 2/9 (Kes 5,555,555.56) share devolving to his sons at 2/11 (Kes 1,010,101.00) each and his daughters at 1/11 (Kes 505,050.50) each
- 4.The petitioner be paid Kes 5,555,555.56, the widow having given authority for her share to be paid to the petitioner on her behalf
- 5.Nazir and Anwar Hussein Mohamed each be paid Kes 1,010,101.00
- 6.The respondents to pay the petitioner, Nazir and Anwar Hussein Mohamed Kes 7,575,757.56 within six months from the date of the ruling
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original succession jurisdiction of the Kadhis' Court over the estate of a Muslim
Relief refused
#Sale of the estate properties to pay the shares of the petitioner, Nazir and Anwar Hussein Mohamed Kassim
The respondents submitted they are willing to pay their shares and sought reasonable time to do so; the court instead ordered payment within six months
Costs
No order as to costs is recorded in the judgment.
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.
Having been born before the marriage of his putative parents, for purpose of inheritance, Kassim Hassan Mohamed is not a legal heir of Hassan Mohamed Kassim and therefore cannot inherit him.
The omission of the widow of Hassan Mohamed in the list of his beneficiaries was an oversight and a clear error on the face of the record. The errors are hereby corrected.
In total the respondents to pay the petitioner, Nazir and Anwar Hussein Mohamed Kes 7,575,757.56 within six [6] months from date hereof. Orders accordingly.
Issues in the judgment
#The judgment states both that the judgment under review was delivered on January 29, 2015 and that perusal was of a judgment delivered on 27th April 2016, creating ambiguity as to the date of the judgment being reviewed.
The judgment inconsistently refers to the deceased estate holder as 'Anwar Hussein Mohamed Kassim' in the application and 'Anwar Hussein Mohamed Hussein' in the distribution.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In re Estate of Mohamed Kassim (Deceased) (Succession Cause 117 of 2007) [2017] KEKC 19 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2017/19/eng@2017-08-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.