In re Estate of Ali Adan Mohamed (Deceased) [2019] KEKC 19 (KLR)
The bottom line
#A Moyale Kadhi's Court ruled that money raised for a family after someone dies is not part of the estate, and the widowed mother keeps custody of her children.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the proceeds of the fundraising conducted by well-wishers after the death of the deceased can be considered as his estate
- 2.Who has the right to custody of the two daughters of the deceased
Key legal issues
#Whether posthumous fundraising proceeds constitute the estate (tarikah) of the deceased
They do not; the plot bought with such proceeds belongs to the petitioner and her children, while the balance in the joint account is shared equally between petitioner and respondent
The court defined estate under the Law of Succession Act as the free property of a deceased person and under Islamic law as what the deceased leaves behind. The fundraising occurred after the death, so the proceeds never accrued to the deceased and cannot be subjected to succession. The joint account balance was however shared equally between the two signatories.
Custody of the deceased's two daughters
Custody granted to the petitioner (the mother)
Islamic law prefers the mother for custody as she is more compassionate and better able to raise small children. The conditions of custody are being an accountable adult of sound mind, good character, and able to fulfil obligations towards the child. The respondent adduced no evidence that the petitioner failed to meet these conditions, so custody was restored to her.
Whether the deceased owned camels
Claim not proved; the respondent took the denial oath under Sharia law
The petitioner alleged the deceased left two camels in the custody of a clan member. The respondent denied this and, after the petitioner failed to prove the claim, took the denial oath as required by Sharia law, which defeated the claim. Nothing was therefore available for distribution in terms of camels.
Legal principles established
#- Proceeds of a fundraising conducted by well-wishers after a person's death do not form part of the deceased's estate (tarikah)
- Under Islamic law, a mother has the primary right to custody of children, subject to the conditions of being an accountable adult of sound mind, good character and able to fulfil obligations towards the child
Court orders
#- 1.Declared that the plot bought with proceeds of the post-death fundraising cannot be considered part of the deceased's estate and belongs to the petitioner and her children
- 2.Ordered that the remaining money in the joint Equity Bank account be shared equally between the petitioner and the respondent
- 3.Granted the right of custody of the two daughters of the deceased to the petitioner
- 4.Refused the claim that the deceased owned camels after the respondent took the denial oath
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Law of Succession Act (as applicable to Muslims) and Islamic law of succession; Kadhi's Court jurisdiction over the estate of a Muslim deceased
Relief refused
#Claim that the deceased owned two camels forming part of his estate
The petitioner failed to prove the claim and the respondent took the denial oath under Sharia law
Respondent's request for custody of the children and the plot
Custody rights in Islam favour the mother and no evidence displaced the petitioner's eligibility
Costs
No costs order made 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.
there is no dispute that the said property is from the proceeds of the fundraising that was conducted after the death of late Ali Adan Mohamed by well wishers therefore cannot be subjected or considered as an estate of the deceased thus the said plot belong to the petitioner and her children.
Concerning the amount of money at the Equity bank which both the Petitioner and the Respondent are signatories be shared equally by the Petitioner and the Respondent.
the right to custody is hereby restored and granted to the Petitioner. It is so ordered.
Issues in the judgment
#The judgment does not state the amount remaining in the joint Equity Bank account, only that it should be shared equally
Inconsistent figures in the pleadings: the petitioner says Kshs 650,000 was used for the plot and construction while the respondent says Kshs 250,000 for the plot and Kshs 750,000 withdrawn for construction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In re Estate of Ali Adan Mohamed (Deceased) [2019] KEKC 19 (KLR)", Case Analysis (2019). Succession Cause No. 24 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2019/19/eng@2019-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.