In re Estate of Hassan Hamis Said (Deceased) [2018] KEKC 24 (KLR)

Kadhi's Court

24 December 2018

KPKadhi (name not printed)

888 words in judgment

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The bottom line

Kenya's Kadhi's Court confirmed that a deceased Muslim's estate must be shared under Islamic law, with the mother taking one-sixth and siblings sharing 2:2:1.

What this practically means

Executive summary

The deceased died intestate on 31st December 2017, leaving 0.08HA of land (L.R E. Bukusu/s. Kanduyi/12904), a 50% share in Redhat Restaurant – Bungoma, and approximately Ksh. 380,000 in cash and three bank accounts. He was survived by his mother, two brothers and one sister, who were the bona fide heirs. The petitioner gave evidence that a family agreement had been reached to distribute the estate in accordance with Islamic law, including the restaurant shares to be dealt with after sale of the business. The court affirmed its jurisdiction under Article 170(5) of the Constitution, sections 5 and 6 of the Kadhi's Court Act and sections 2(3) and 48(2) of the Law of Succession Act, which reserve succession of a deceased Muslim to Muslim law. Applying Quran 4:11, the court held the mother entitled to one-sixth of the net estate, and applying Quran 4:176, awarded the two brothers and the sister the remainder at a ratio of 2:2:1. After deducting legal costs of Ksh. 35,000 from the cash estate, the court ordered joint registration of the land in the proportions 16.7%, 33.3%, 33.3% and 16.7%; transfer of the three bank balances to Said Khamis Said; payment of cash sums to each beneficiary; distribution of 50% of the restaurant sale proceeds in the same proportions; and that the Ksh. 35,000 costs be borne by the estate. Judgment was delivered at Bungoma on 24th December 2018.

Key legal issues

Jurisdiction of the Kadhi's Court over the estate

Holding

The court was properly seized of the matter as all parties are Muslim and the question is one of inheritance under Muslim law.

Reasoning

The court relied on Article 170(5) of the Constitution, sections 5 and 6 of the Kadhi's Court Act and sections 2(3) and 48(2) of the Law of Succession Act, which together confine succession of a deceased Muslim to Muslim law and vest jurisdiction over inheritance questions in the Kadhi's Court.

p. 1

Shares of each heir under Islamic law

Holding

The mother takes one-sixth; the two brothers and one sister take the remainder at 2:2:1, the male taking twice the female's share.

Reasoning

Applying Quran 4:11, where the deceased left brothers or sisters the mother's share is reduced to a sixth. Quran 4:176 provides that among brothers and sisters the male takes twice the share of the female, yielding the ratio 2:2:1 between the two brothers and the sister, after payment of legacies and debts.

p. 2

Legal principles established

A Kadhi's Court's jurisdiction is limited to determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance where all parties profess the Muslim religion
Intestate succession of a Muslim is governed by Muslim law and not the Law of Succession Act
Where the deceased left brothers or sisters, the mother is entitled to a sixth share; the male takes twice the share of the female

Court orders

1.L.R E. Bukusu/s. Kanduyi/12904 – 0.08HA be jointly registered to Saud Khamis Said (16.7%), Said Khamis Said (33.3%), Ahmad Khamis Said (33.3%) and Hamida Khamis Said (16.7%)
2.Gulf African Bank (Ksh. 14,325.92), Diamond Trust Bank (Ksh. 88,096.90) and Equity Bank (Ksh. 3,325.50) to transfer or pay all monies held for the deceased to Said Khamis Said or his account at Barclays Bank – Bungoma, subject to bank levies
3.Beneficiaries be paid cash: Saud Khamis Said Ksh. 57,586.00; Said Khamis Said Ksh. 9,456.00; Ahmad Khamis Said Ksh. 115,172.00; Hamida Khamis Said Ksh. 57,586.00
4.50% sale proceeds of shares at Redhat Restaurant – Bungoma be distributed to the heirs in accordance with Islamic law and the percentages in order (1)
5.Costs of Ksh 35,000.00 be borne by the estate

Jurisdiction invoked: Article 170(5) of the Constitution as read with sections 5 and 6 of the Kadhi's Court Act (Cap 11) and sections 2(3) and 48(2) of the Law of Succession Act (Cap 160)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "In re Estate of Hassan Hamis Said (Deceased) [2018] KEKC 24 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2018/24/eng@2018-12-24

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