In re Estate of Mumtaz Hassan Sheikh (Deceased) (Succession Cause E091 of 2022) [2023] KEKC 15 (KLR)
The bottom line
#A Kenyan Kadhi's Court upheld a Muslim man's will and his chosen executor, striking out only one clause that could have denied heirs their inheritance.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether or not the grant was obtained through fraud or concealment of material facts
- 2.Whether or not the respondent is qualified under Islamic law to be executor of the will
- 3.Whether or not the will offends Islamic laws of inheritance on wills
- 4.Whether invalidity of one or some clauses of a will renders the entire will invalid
Key legal issues
#Whether the grant was obtained through fraud or concealment of material facts under section 76 of the Law of Succession Act
No fraud or concealment was established; the executor annexed the will, sought leave for gazettement, the petition was gazetted and no objection was filed within the prescribed period.
The court applied section 76 and the principles summarised in John Mundia Njoroge and Noorbanu Abdulrazak. In testate succession the executor petitions as of right; heirs' consent is not required as that is inconsistent with Islamic law. The gazette notice afforded any beneficiary the right to object. No claim or proof of forgery or coercion was tendered, so the grounds for revocation were not made out.
Whether the respondent is qualified under Islamic law to be executor
Yes; a Muslim testator may appoint any qualified person of his choice as executor, whether or not a beneficiary.
Drawing on the Kuwaiti encyclopaedia of Islamic jurisprudence, the court held the executor must be a Muslim of legal capacity, and may be female; Umar Ibn Khattab appointed his daughter Hafsa. The testator best knows his interests and may appoint the person he trusts most; appointment of a beneficiary is not mandatory. No evidence showed the executor was unqualified or untrustworthy.
Whether the will offends Islamic laws of inheritance on wills
Save for paragraph 5, the will does not offend Islamic law; the clause directing sale of the prime property and equal distribution of proceeds to the three sons is lawful.
The clause listing all children with one equal share merely reflects their entitlement under Islamic inheritance. Distribution of proceeds rather than the property itself does not prejudice the heirs, especially for a house whose division is problematic. Testamentary disposition is limited to one-third and cannot benefit an heir, but the bequest here distributes to heirs their lawful shares, and the heirs' right to their due shares is protected.
Whether invalidity of one clause invalidates the entire will
No; a repugnant clause is void only to the extent of the inconsistency. Paragraph 5, which could disinherit the heirs through time constraints on disposal, was expunged and the rest of the will stands.
Relying on Macnaghten and Sloan's Principles & Precedents of Moohummudan Law, the court held that where a disposition is legally defective, its provisions are carried into effect pro tanto. Since the testator's intention must be respected as far as practicable, the offending paragraph was severed rather than invalidating the whole will, and the heirs take their shares under the remaining provisions.
Legal principles established
#- A Muslim testator has liberty to appoint any qualified person of his choice as executor; he is not obliged to appoint a beneficiary or heir.
- A clause in a will inconsistent with Islamic laws of inheritance is void only to the extent of the inconsistency and does not invalidate the whole will.
- Testamentary disposition in Islamic law is restricted to one-third of the estate and cannot be made to a legal heir.
- In testate succession the executor named in the will has the original right to petition for a grant and need not obtain the heirs' consent, which requirement is inconsistent with Islamic law.
- Under Islamic law a will may be oral or written and need not be attested; attestation is a recommendation, not a requirement.
Court orders
#- 1.The summons for revocation of grant dated 6th March 2023 is dismissed
- 2.Clause/paragraph 5 of the will (requiring disposal of the immovable property within one year, failing which it be transferred to the niece) is expunged from the will
- 3.The summons for confirmation of the grant of probate with will annexed dated 16th February 2023 is confirmed with the necessary amendment
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Succession jurisdiction over a Muslim estate under sections 2(3) and 48(2) of the Law of Succession Act, Cap 160 and section 76 (revocation of grants)
Relief refused
#Revocation of the grant of probate with will annexed issued on 21st December 2022
The court found the executor fully complied with the law: the will was annexed, the petition was gazetted, no objection was filed, and no fraud or concealment was proved. Save for clause 5, the will conforms to Islamic law.
Costs
No order on costs was 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.
The application having failed, the summons for confirmation of the grant of probate with will annexed dated 16th February, 2023 is hereby confirmed with the necessary amendment.
Accordingly, this provision is expunged from the will. The legal heirs shall, at no time be denied their share of inheritance.
Any clause that is inconsistent with or repugnant to the requirements of laws of inheritance are void only to the extent of their inconsistency.
There is consensus among Muslim jurists that a deceased Muslim has liberty to appoint a person of his choice as executor of his will provided he is Muslim, male or female, of sound mind and capable of executing his will.
The requirement for all heirs to give their consent for taking out of letters of administration is inconsistent with Islamic law that confers on all heirs the same right.
Issues in the judgment
#The applicant in the summons for revocation is described only as 'son to the deceased who is a beneficiary of the estate'; his individual name is never stated, although the deceased's three sons (Atir, Rizwan and Tariq Hassan Sheikh) are named at the outset.
The court's own summary of the parties' positions on validity of the will contradicts the submissions recorded: 'The applicant argued it did not. He contends it contravenes principles of Islamic laws of inheritance. The respondent, on the other hand, contended it did not.' The respondent's submissions elsewhere contend the will did NOT offend Islamic law.
The court notes a contradiction in the executor's petition regarding consent of beneficiaries, raised by the applicant: the petitioner stated he could not get in touch with the beneficiaries to obtain their consent. The court held consent was not required in testate succession, so this did not defeat the grant.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In re Estate of Mumtaz Hassan Sheikh (Deceased) (Succession Cause E091 of 2022) [2023] KEKC 15 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2023/15/eng@2023-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.