In re Estate of Dilawar Khan & Hava Bhai Khan (Deceased) (Succession Cause E012 of 2020) [2022] KEKC 159 (KLR)
The bottom line
#A Kenyan Kadhi's Court revoked a Muslim father's will that favoured some children, ruling his estate must be divided strictly according to Islamic inheritance shares.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.The applicable law in succession of deceased Muslims
- 2.Requirements of a valid will under Islamic law
- 3.Limitations to making of wills under Islamic law
- 4.Whether the will by the deceased herein satisfied the requirements of a valid will under Islamic law
- 5.Mode of distribution of the estate of the deceased herein
Key legal issues
#Applicable law in succession of deceased Muslims
Islamic law of succession, not the Law of Succession Act, applies to deceased Muslims
Article 170(5) of the Constitution confers jurisdiction on the Kadhi's court over questions of Islamic law in inheritance between Muslims; section 2(3) of the Law of Succession Act exempts Muslim estates and section 48(2) confirms Kadhi's court jurisdiction. Case law cited (Chelanga v Juma; Estate of Ali Shitialo Ibrahim) confirms this. Only Part VII on letters of administration applies where not inconsistent with Muslim law.
Validity of the 2010 will
The will is valid in form but invalid in substance for bequeathing the house to two daughters (heirs), thereby disinheriting other heirs
Islamic law allows wills but limits them to one-third of the estate and only to non-heirs. Bequeathing to heirs interferes with the Qur'anic allocation of shares (Q 4.11) and amounts to an attempt to disinherit heirs, which all schools of Islamic jurisprudence prohibit. Only a last will is recognised; the 2003 will was replaced by the 2010 will, which was declared invalid and revoked.
Devolution of shares of predeceased beneficiaries
Under Islamic law a predeceased beneficiary's proportionate share devolves to their own heirs (al-munaskhat)
Unlike common law, a beneficiary's rights are not extinguished by death. Imtiaz (unmarried, childless) died first; her share devolved to her four siblings, males taking twice the female share (Q 4.176). Gulnar's 20% share devolved to her husband (one-half) and her siblings in the ratio 2:1 (Q 4.12 and 176), yielding the final shares: son 45%, each daughter 22.5%, son-in-law 10%.
Legal principles established
#- The Law of Succession Act does not apply to estates of deceased Muslims; their estates devolve under Muslim law
- Under Islamic law a will may only be in favour of non-heirs and limited to one-third or less of the estate
- A will bequeathing to heirs and disinheriting other heirs offends Islamic law and is invalid to the extent of the inconsistency
Court orders
#- 1.The will dated October 31, 2010 is declared invalid and revoked
- 2.The estate shall be distributed pursuant to Q 4.11, 12 and 176 - son 45%, each surviving daughter 22.5%, son-in-law (widow of predeceased daughter) 10%
- 3.Notice of grant of letters of administration jointly in the parties' names is granted, subject to payment of fees for gazette publication and eventual confirmation of the grant in the stated shares
- 4.Any heir with evidence of other properties of the estate may apply for their inclusion in the estate
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 170(5) of the Constitution of Kenya, 2010 and sections 2(3) and 48(2) of the Laws of Succession Act, Cap 160
Relief refused
#Sole grant of letters of administration to the respondent under intestacy excluding the will, and the objector's claim under the 2010 will
The 2010 will is invalid because it bequeathed to heirs and disinherited other heirs contrary to Islamic law; distribution must follow Qur'anic shares
Claim on monies in two bank accounts in Tanzania referred to in the will
No evidence was produced of their existence or availability for distribution
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 will is declared invalid and is hereby revoked. The estate shall be distributed pursuant to the provisions of Q 4.11, 12 and 176 on distribution of estates of deceased Muslims.
The parties, in compliance with requirements for grant of letters of administration, should now move with haste to pay requisite fees for publication of the petition for letters of administration in their joint names, notice of which is hereby granted and eventual confirmation of the grant in the shares indicated herein above.
Wills under Islamic law have two limitations; It can only be in favour of non-heirs and is restricted to a third or less of the estate.
Nothing stops any heir with evidence on other properties of the estate from applying for consideration for its inclusion in the estate of the deceased herein.
Issues in the judgment
#The objector's counsel submitted that the 2010 will was invalid for want of two independent witnesses but that the 2003 will was valid, yet the court found the 2010 will valid in form and revoked only it; the 2003 will's validity was not addressed because it was superseded
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In re Estate of Dilawar Khan & Hava Bhai Khan (Deceased) (Succession Cause E012 of 2020) [2022] KEKC 159 (KLR)", Case Analysis (2022). Succession Cause (notice of motion dated August 20, 2020; cross petition dated May 18, 2021) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2022/159/eng@2022-11-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.