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KadhiPartially AllowedKCSUCC 1 of 2019

In the Matter of Estate of Late GOLLO DUBA (Deceased) - Asili Gollo Duba v Jibril Gollo Duba

Kadhi's Court
20 February 2020
8,858 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~35 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The applicant, a daughter of the late Gollo Duba, sought fair distribution of plots left out when livestock was distributed in Kadhi's Court succession cause No. 2 of 2018. The respondent, her brother, contended the deceased had distributed five plots among the dependants in 2011 before 22 elders. The Kadhi framed issues on whether the lifetime distribution was an inheritance, gift or will, its conformity with Islamic law, whether Quran 2:180 remains binding, and whether Isiolo plots formed part of the estate. On the evidence, the court found the 2011 meeting was convened to resolve a dispute between the deceased and his wife Mama Dansa, and that the deceased had declared two plots for his two sons only, to vest after his death. Such a lifetime distribution styled as inheritance is invalid under Islamic law: it fails the conditions of a gift since possession was not transferred and equity among children was not observed, and it cannot operate as a will in favour of an heir without the consent of all heirs, besides exceeding the unproven one-third limit; Quran 2:180 was held abrogated by the verse of inheritance. The court also found the deceased's preference for sons was possibly grounded in the Borana 'andura' practice, which was rejected as discriminatory and repugnant to Islamic inheritance law, and held that Mama Dansa has marital rights under Article 45(3) of the Constitution and inheritance rights in the plot she helped construct. The Kiwanjani Isiolo plot, bought through the deceased's son-in-law and registered in his name by error, was included in the estate; the Checheles plot was excluded as belonging to a different person; claims over a motorbike, chairs, money and a tent were withdrawn. The court ordered the plots into the estate, distribution per Islamic Shariah shares (widows 4.1666% each, sons 14.5833% each, daughters 7.2917% each), advised application for letters of administration and valuation, ordered each side to bear its own costs, and gave a right of appeal within 30 days.

Questions the Court framed

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

  1. 1.Whether the deceased shared out his plots to his dependants during his lifetime, and whether that was as inheritance, gift or will
  2. 2.Whether the deceased relied on rules provided in Islamic law in distributing his inheritance, gifting or giving a will, and what guideline he used
  3. 3.Whether the ruling prescribed in the verse of Quran 2:180 is still binding
  4. 4.Whether it is acceptable in Islam for the deceased to have distributed his plots to his dependants as his inheritance
  5. 5.Whether the deceased had plots at Isiolo which ought to form part of his estate

Key legal issues

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01

Whether the deceased distributed his plots during his lifetime and with what legal character

Holding

The deceased gave two plots to his two sons as inheritance to be owned after his death; this was not a valid gift (no possession taken) nor a valid will (no consent of other heirs, exceeds one-third limit unproven)

Reasoning

The court found from the respondent's own evidence and witnesses that the 2011 meeting was convened to resolve a dispute with Mama Dansa over plots declared for the sons, not to distribute the estate to all dependants. The sons did not take actual possession during the deceased's lifetime, defeating a gift; a bequest to an heir requires the other heirs' consent; and the one-third wasiyyat limit was never established.

p. 4
02

Whether Quran 2:180 remains binding on bequests

Holding

The verse is abrogated according to the majority of scholars including the four Imams, both in meaning and ruling, including on invalidating a bequest to an heir

Reasoning

The court reasoned that companions left no reports of making such wills; a will is a charitable act not binding in lifetime; and a bequest to an heir is abrogated by the verse of inheritance. Further, the deceased was not on his sickbed and gave the plots seven years before death, and the one-third limit was never established by the respondent.

p. 5
03

Whether the Kiwanjani Isiolo plot registered in the name of Mohamed Godana Wako forms part of the estate

Holding

Yes; the court found the deceased purchased the plot through his son-in-law Mohamed Godana Wako in whose name it was registered, so it forms part of the estate

Reasoning

The applicant and several witnesses testified the deceased bought and developed the plot through Mohamed Godana as nominee. The land office clarified that the registration in Mohamed Godana Wako's name was an error subsequently rectified. The respondent did not rebut these claims to the required standard, and Safia produced no documents supporting a claim of gift from her former husband.

p. 7
04

Mama Dansa's rights in the plot she occupied and helped construct

Holding

She has rights in the property, both marital rights under Article 45(3) of the Constitution and a right of inheritance

Reasoning

The plot was acquired and developed during her subsistence marriage with the deceased, and she contributed towards its possession and construction. Upon dissolution of the marriage by death she is entitled to equal rights during the marriage under Article 45(3), and also to her inheritance share as a widow.

p. 5
05

Influence of Borana customary practice on the distribution

Holding

The deceased's preferential treatment of sons may have been based on the Borana 'andura' practice, which is irrelevant and discriminatory and contrary to Muslim law of inheritance

Reasoning

The court described the andura practice whereby male children are favoured and female children are not allowed to own property. Since the applicable law for a deceased Muslim's estate is Muslim law, and the practice discriminates against female children and contradicts Islamic inheritance rules, it was rejected as a basis for the distribution.

p. 6

Legal principles established

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  • Distribution of one's wealth during lifetime is not a valid division of inheritance under Islamic law; it is valid only as a gift if the conditions of a gift, including transfer of possession and equity among children, are met
  • A will (wasiyat) made in favour of an heir cannot be executed except with the consent of all the other heirs
  • The verse of Quran 2:180 on bequests is abrogated by the verse of inheritance according to the majority of scholars including the four Imams
  • Silence does not in all cases constitute valid acceptance or approval of a division of an estate; consent must be based on knowledge
  • Where heirs are in dispute over the mode of distribution, they must follow the mode provided in the Quran and Hadith
  • Cultural practices such as the Borana 'andura' concept that discriminate against female children are repugnant to Islamic law of inheritance

Court orders

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  1. 1.That the plots four (4) in number all of Garbatulla, the plot of Merti and the plot of Kiwanjani Isiolo, all to form part of the estate of the deceased Gollo Duba Oda
  2. 2.That the plot no. (withheld) of Checheles shall not form part of the deceased estate, since it belongs to a different person
  3. 3.That the mode of distribution should follow the shares stipulated in the Islamic Shariah law when there is dispute, or according to the agreement of the heirs
  4. 4.That in case of dispute over mode of distribution, distribution shall follow the specified percentage shares: widows 4.1666% each; each son 14.5833%; each daughter 7.2917%
  5. 5.That parties are advised to apply for letters of administration as a procedural step, and the estate should be shared after valuation of the property is done through agreement locally or by accredited and certified valuers
  6. 6.Each side to bear its own cost
  7. 7.Right of appeal within 30 days from the date of the judgement

The bench

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

GA
Galgalo AdanSenior Resident Kadhi
majority

Wrote the judgment

Jurisdiction invoked
Kadhi's Court jurisdiction over the estate of a deceased Muslim under Islamic Shariah law; Article 159(2)(c) of the Constitution of Kenya 2010 on alternative dispute resolution

Relief refused

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Inclusion of the Checheles plot in the estate

Records showed it belongs to a different person, Duba Gollo Duba, not the deceased

p. 6

Claims over cash money, motorbike, tent and chairs

The claimants withdrew the claims

p. 7

Upholding the deceased's lifetime distribution of plots to the sons as inheritance

A lifetime distribution styled as inheritance is invalid under Islamic law; it fails the conditions of a gift and a will to an heir requires consent of all heirs

p. 4

Costs

Each side to bear its own cost.

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.

That the plots four (4) in number all of Garbatulla, the plot of merti and the plot of Kiwanjani Isiolo, all to form part of the estate of the deceased Gollo Duba Oda.
p. 8final orders - estate composition
That the mode of distribution should follow according to the shares stipulated in the Islamic sharia law when there is dispute, and or according to the agreement of the heirs.
p. 8final orders - mode of distribution
That in any case the mode they prefer, parties are advise to apply for letters of administration as a procedural and to make smooth transition of the estate.
p. 8final orders - letters of administration and valuation
Each side to bear its own cost.
p. 8final orders - costs
According to Islamic law distribution of one’s wealth during his lifetime is not a valid division of inheritance.
p. 4lifetime distribution not valid inheritance
if he makes a bequest to one of his heirs, and the other heirs did not agree to it, then it is not valid, and there is no difference of scholarly opinion on this matter.
p. 5bequest to an heir requires consent
The Borana concept of “andura” is irrelevant to the deceased’s property herein for it is not conforming to Islam law, and also it is discriminatory to a female child.
p. 6customary practice vs Islamic inheritance law
But the burden of proof is upon the claimant and the taking of an oath is upon the one who denies (the allegation)
p. 3burden of proof in Islamic law

Issues in the judgment

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minor

Judgment states the parties 'presented mostly oral testimonies' but refers to witnesses numbered AW2, AW4, AW5, AW6 and AW7 without any record of AW1 or AW3 appearing or testifying

minor

The Checheles plot is described both as belonging to a different person and as having been earlier listed in the land office letter among the deceased's plots; the court's final order wording on the Checheles plot ('yet to form part') is ambiguous but read with the reasoning excludes it from the estate

minor

The judgment records the deceased's son's name variously as Jibril Gollo Duba and Duba Gollo Duba in relation to the Checheles plot denial

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 the Matter of Estate of Late GOLLO DUBA (Deceased) - Asili Gollo Duba v Jibril Gollo Duba", Case Analysis (2020). KCSUCC 1 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2020/12/eng@2020-02-20

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