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KadhiPartially AllowedNot stated in the judgment

In re Estate of Mohamed Kassim (Deceased) (Succession Cause 117 of 2007) [2017] KEKC 19 (KLR)

Kadhis' Court
18 August 2016
688 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Kadhis' Court at Mombasa delivered by Principal Kadhi Abdulhalim H. Athman on August 18, 2016, determining two applications arising from a succession cause in which judgment had been delivered on January 29, 2015 and shares fixed on March 17, 2016. The first application, by the respondents dated April 27, 2016, sought review on the grounds that the widow Leilah Gasana had been omitted from the list of beneficiaries of Hassan Mohamed Kassim despite a finding that she was his wife, and that Kassim Hassan Mohamed had been listed as a beneficiary although he was born in 1975, four years before the marriage of his putative parents in 1979. Counsel for the petitioner did not oppose the review. The court held the omission of the widow was a clear error on the face of the record and corrected it, while excluding Kassim Hassan Mohamed as a legal heir since a child born before the marriage of his putative parents cannot inherit. The second application, by the petitioner dated April 26, 2016, sought the addition of Anwar Hussein Mohamed Kassim as an heir of Hussein Mohamed Kassim and a sale of estate properties to pay the shares of the petitioner, Nazir and Anwar. The addition was uncontested and granted, Anwar's 2/9 share devolving to his four sons and three daughters. The request for sale was not granted; the respondents expressed willingness to pay and sought reasonable time, so the court ordered payment of Kes 7,575,757.56 to the petitioner, Nazir and Anwar within six months. No costs order was made.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether Leilah Gasana, the widow of Hassan Mohamed Kassim, should be included as a beneficiary of his estate
  2. 2.Whether Kassim Hassan Mohamed, born four years before the marriage of his putative parents, is a legal heir of Hassan Mohamed Kassim
  3. 3.Whether Anwar Hussein Mohamed Kassim should be added to the list of heirs of Hussein Mohamed Kassim
  4. 4.Whether the estate properties should be sold to pay the shares of the petitioner, Nazir and Anwar Hussein Mohamed Kassim

Key legal issues

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01

Whether Kassim Hassan Mohamed is a legal heir of Hassan Mohamed Kassim

Holding

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

Reasoning

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.

p. 2
02

Whether the omission of the widow Leilah Gasana from the list of beneficiaries could be corrected

Holding

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

Reasoning

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.

p. 2
03

Whether Anwar Hussein Mohamed Kassim should be added as an heir of Hussein Mohamed Kassim

Holding

The addition was not contested and was granted; his 2/9 share devolves to his seven heirs

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 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. 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. 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. 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. 5.Nazir and Anwar Hussein Mohamed each be paid Kes 1,010,101.00
  6. 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

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One judgment of the whole court — no separate or dissenting opinions.

AA
Abdulhalim H. AthmanPrincipal Kadhi
majority

Wrote the judgment

Jurisdiction invoked
Original succession jurisdiction of the Kadhis' Court over the estate of a Muslim

Relief refused

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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

p. 2

Costs

No order as to costs is recorded in the judgment.

Quotable passages

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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.
p. 2Heirship of a child born before the marriage of putative parents
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.
p. 2Review to correct error on the face of the record
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.
p. 2Final orders on payment of shares

Issues in the judgment

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minor

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.

minor

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

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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, "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.