In re Estate of Fatmabhai Mohamed Saleh (Deceased) (Succession Cause E006 of 2022) (Family) [2022] KEKC 147 (KLR)
The bottom line
#A Nairobi Kadhis' Court confirmed an estate distribution but cut grandchildren's inheritance to one-third as Islamic law allows by will.
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 letters of administration intestate issued to Kassam Esmail Abdalla should be confirmed
- 2.Whether the bequest to the grandchildren (children of predeceased sons) under the deceased's will is valid under Islamic law and to what extent
- 3.What shares of the estate each heir should take on confirmation
Key legal issues
#Entitlement of grandchildren of predeceased children to inherit
Predeceased children are not entitled to a share of inheritance, but their children may benefit through a will, which is valid under Islamic law
Islamic law requires confirmation of the death of the propositus and survival of legal heirs (Q.4:11, 12, 176). Predeceased children take nothing, but a testamentary provision for the children of the deceased's children is valid, legal and binding, serving to protect vulnerable grandchildren as compulsory wills do in other jurisdictions.
Limit on testamentary disposition under Islamic law
A will may not exceed one-third of the estate and may not benefit a legal heir; the bequest to the grandchildren was rectified and limited to the lawful third
Relying on classical Islamic law texts (Nawawi, Tyabji, Hidayatullah, Macnaghten), the court held the two limitations on wills are that it must not favour a legal heir and must not exceed one-third. The will satisfied the first limb but not the second, so the grandchildren's bequest was limited accordingly and shares adjusted.
Confirmation of grant before six months where there are no dependants
Section 71(1), (3) and (4) of the Laws of Succession Act permits confirmation in less than six months where there are no dependants
All heirs are adults and no application for provision of dependants is pending. Under Islamic law estates devolve automatically to heirs in prescribed shares and should be distributed soonest after settlement of liabilities and bequests, justifying confirmation within the prescribed period.
Legal principles established
#- A bequest under Islamic law may not exceed one-third of the estate and may not be made in favour of a legal heir; a bequest in excess takes effect only with the heirs' consent
- The wishes of the deceased must be respected as far as possible and in so far as they are not contrary to law
Court orders
#- 1.The letters of administration intestate issued to Kassam Esmail Abdalla on June 20, 2022 confirmed in the shares indicated
- 2.Certificate of confirmation of grant to issue
- 3.The deceased's will with respect to the share of the grandchildren rectified and limited to the share allowed under Islamic law
- 4.Final shares: Kassam Esmail Abdalla 66.66%; Rubina Ramadhan Esmail 8.335%; Sabreena Ramadha Esmail 8.335%; Ismail Junas Esmail 6.668%; Shairose Junas Esmail 6.668%; Karima Junas Esmail 3.334%
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Laws of Succession Act, Cap 160 (Section 71) read with Islamic law applicable in Kadhis' courts
Relief refused
#The proposal that the three families equally share the rent proceeds of one Mombasa property
It offends the provisions of the will of the deceased; the wishes of the deceased must be respected, and the will is valid except that the bequest to grandchildren is limited to one-third of the estate
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.
Accordingly, the letters of administration intestate of the estate of the deceased herein issued to Kassam Esmail Abdalla on June 20, 2022 be and is hereby confirmed in the shares indicated hereinabove. Certificate of confirmation of grant to issue.
Accordingly, the deceased’s will with respect to the share of the grandchildren is rectified and limited to the required share allowed under Islamic law.
In construing wills, the courts give efiect, as far as possible, to the intention of the testator, albeit indirectly.
Issues in the judgment
#The judgment refers to the deceased as 'she' and 'her' in one passage but 'his will' and 'he willed' in another
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In re Estate of Fatmabhai Mohamed Saleh (Deceased) (Succession Cause E006 of 2022) (Family) [2022] KEKC 147 (KLR)", Case Analysis (2022). Summons for confirmation of grant dated June 28, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2022/147/eng@2022-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.