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Case Brief · caselaw.co.ke
Supreme CourtAllowedApplication E050 of 2023

Faraj v Mwawasi & 2 others

Supreme Court of Kenya
18 October 2024
2,649 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Supreme Court halts estate distribution pending appeal on Islamic law vs. equality rights.

What this practically means

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The Supreme Court has temporarily stopped the distribution of a deceased Muslim man's estate. This pause allows the Court to hear an appeal about whether Islamic inheritance rules can override the constitutional right to equality. The case affects how estates of Muslims who die without a will are shared. The Court said the appeal raises important legal questions that need careful consideration before any final decisions are made.

Executive summary

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This ruling arises from a Notice of Motion dated 14th December 2023, filed by Fatuma Athman Abud Faraj (the applicant) seeking stay of execution of the Court of Appeal judgment dated 10th November 2023 and stay of proceedings in the High Court succession cause, pending the hearing and determination of her appeal (SC Petition No. E035 of 2023). The background involves a succession dispute over the estate of Salim Juma Hakeem Kitendo, who died intestate in 2015. The High Court had declared the applicant and the 1st respondent as widows and ordered distribution under Islamic law, including DNA testing for certain children. The Court of Appeal upheld the High Court's decision except for the DNA testing order, which it set aside, and remitted the matter for determination of beneficiaries' entitlements. The applicant challenges the Court of Appeal's decision, arguing that it failed to properly interpret Article 27 vis-à-vis Article 24(4) of the Constitution regarding the application of Islamic law to succession. The Supreme Court, noting that it had previously recused itself from matters involving the applicant's law firm (Ahmednasir Abdullahi Advocates LLP) but was constrained by necessity to determine this part-heard motion, found that the appeal is arguable, that it would be rendered nugatory if the stay is not granted because the estate could be distributed, and that the matter raises public interest issues concerning the distribution of estates of deceased Muslims. The Court granted the stay orders, including a stay of further execution of a High Court ruling that had allowed the applicant to draw funds from the estate, to balance the rights of all beneficiaries. Each party was ordered to bear its own costs.

Questions the Court framed

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

  1. 1.Whether the applicant's appeal is arguable.
  2. 2.Whether the appeal would be rendered nugatory if the stay orders sought are not granted.
  3. 3.Whether it is in the public interest to grant the stay orders.

Key legal issues

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01

Whether the applicant's appeal raises an arguable point for consideration by the Supreme Court.

Holding

The Court found that the question of the interpretation of Article 27 vis-à-vis Article 24(4) of the Constitution as it pertains to the distribution of the estate of a deceased Muslim calls for consideration, making the appeal arguable.

Reasoning

The Court considered the grounds of appeal advanced in the Motion and the appeal itself. It noted that the applicant argued that the Court of Appeal failed to appreciate that Article 27 (right to equality and freedom from discrimination) is subject to the limitation under Article 24(4) of the Constitution regarding Islamic law. The Court held that this issue requires its consideration and therefore the appeal is arguable, without delving into the merits of other grounds.

02

Whether the appeal would be rendered nugatory if the stay orders are not granted.

Holding

The Court found that the deceased's estate may be distributed in terms of the impugned judgment, which is the subject of the pending appeal, and therefore the appeal may be rendered nugatory unless the stay orders are granted.

Reasoning

The Court was persuaded that the estate could be distributed based on the Court of Appeal judgment that is being challenged. It noted that nothing was placed before it to show that any actions taken pursuant to the impugned judgment could be reversed if the appeal succeeds. Therefore, the nugatory aspect was satisfied.

03

Whether it is in the public interest to grant the stay orders.

Holding

The Court found that the determination of the issues in dispute will have a significant bearing on the distribution of the estates of Muslims who die intestate, and therefore it is in the public interest to issue the stay orders.

Reasoning

The Court acknowledged that the appeal raises a question about the application of Islamic law in succession matters, which affects a broader class of persons beyond the parties. This public interest dimension justified granting the stay.

Legal principles established

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  • A stay applicant must show the appeal is arguable and would be pointless without the stay.
  • Public interest cases require an additional showing that a stay serves the public good.
  • An appeal is arguable if it raises a constitutional interpretation question needing Supreme Court review.
  • An appeal is nugatory if the estate could be distributed before the appeal is heard.
  • Public interest exists when the ruling affects a broader group beyond the parties involved.

Court orders

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  1. 1.An order of stay of execution of the judgment of the Court of Appeal in Mombasa Civil Appeal No. E043 of 2023 dated 10th November, 2023 is hereby issued pending the hearing and determination of SC Petition No. E035 of 2023.
  2. 2.An order of stay of the proceedings in High Court Mombasa Succession Cause No. 200 of 2015 is hereby issued pending the hearing and determination of SC Petition No. E035 of 2023.
  3. 3.An order of stay of further execution of the High Court ruling dated 3rd August, 2023 in High Court Mombasa Succession Cause No. 200 of 2015 is hereby issued pending the hearing and determination of SC Petition No. E035 of 2023 or further orders of this Court, as the case may be.
  4. 4.Each party shall bear their costs of the Motion.

The bench

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

Martha Karambu Koome
M. K. KoomeCJ
Currently serving
majority

Wrote the judgment

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal at Mombasa
Mombasa Civil Appeal No. E043 of 2022
Jurisdiction invoked
Sections 21 & 23A(1)(a) of the Supreme Court Act (Cap 9B Laws of Kenya) and Rules 31 & 32 of the Supreme Court Rules, 2020

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.

An applicant, in that regard, is required to establish that his/her appeal is arguable, and that unless the orders sought are granted, the appeal would be rendered nugatory in the event it succeeds. However, an additional criterion arises where the matter in question has a public interest connotation and in such a case, an applicant is required to also establish that it is in the public interest that the order of stay be granted.
p. 4 Stay of execution and proceedings in the Supreme Court
we find that the question of the interpretation of Article 27 vis-à-vis Article 24(4) of the Constitution as it pertains to the distribution of the estate of a deceased Muslim calls for our consideration.
p. 5 Arguable appeal
we are persuaded that the deceased’s estate may be distributed in terms of the impugned judgment, the subject of the appeal before this Court, SC Petition No. E035 of 2023, which is pending determination. Consequently, we find that the applicant’s appeal may be rendered nugatory unless the orders sought are granted.
p. 5 Nugatory aspect of appeal
we are alive to the fact that the determination of the issue(s) in dispute in the applicant’s appeal will have a significant bearing on the distribution of the estates of Muslims who die intestate. In the circumstances, we are convinced that it is in the public interest to issue the orders sought.
p. 5 Public interest in granting stay
An order of stay of execution of the judgment of the Court of Appeal in Mombasa Civil Appeal No. E043 of 2023 dated 10th November, 2023 is hereby issued pending the hearing and determination of SC Petition No. E035 of 2023.
p. 5 Final orders - stay of execution
An order of stay of the proceedings in High Court Mombasa Succession Cause No. 200 of 2015 is hereby issued pending the hearing and determination of SC Petition No. E035 of 2023.
p. 5 Final orders - stay of proceedings
An order of stay of further execution of the High Court ruling dated 3rd August, 2023 in High Court Mombasa Succession Cause No. 200 of 2015 is hereby issued pending the hearing and determination of SC Petition No. E035 of 2023 or further orders of this Court, as the case may be.
p. 6 Final orders - stay of High Court ruling
Each party shall bear their costs of the Motion.
p. 6 Costs order

Key timeline

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2015
Salim Juma Hakeem Kitendo dies intestate; succession case filed in High Court Mombasa.
2023-08-03
High Court rules on distribution, allowing applicant to draw funds from estate.
2023-11-10
Court of Appeal upholds High Court except for DNA testing order; remits for beneficiary determination.
2023-12-14
Fatuma Athman Abud Faraj files Supreme Court motion for stay pending appeal.
2024-01-30
Supreme Court grants stay of execution and proceedings pending appeal.

Practical implications

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For lawyers

Stay applications in public interest cases

When seeking a stay in the Supreme Court, you must now explicitly address three criteria: arguability of the appeal, risk of nugatory outcome, and public interest. For succession matters involving Islamic law, highlight how the constitutional balance between Article 27 and Article 24(4) affects a broader class. Prepare to show that distribution would make reversal impossible.

For businesses

Estate planning for Muslim clients

If you advise Muslim clients on estate planning, note that the Supreme Court is actively considering whether Islamic inheritance rules can limit constitutional equality rights. Until this appeal is decided, intestate succession for Muslims remains uncertain. Encourage clients to make wills to avoid reliance on contested legal interpretations. Monitor this case for changes in succession law.

For individuals

Your inheritance rights may be affected

If you are a Muslim heir expecting to inherit under Islamic law, this case could change how estates are shared. The Supreme Court is deciding whether constitutional equality rights override traditional Islamic inheritance shares. Until the appeal is heard, estate distributions are paused. If you have a claim, consult a lawyer to understand how this ruling might affect your rights.

Frequently asked questions

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What is the Fatuma Athman Abud Faraj case about in Kenya?+

It is a Supreme Court case about whether Islamic inheritance rules for Muslims who die without a will can override Kenya's constitutional right to equality. The Court has temporarily stopped estate distribution to hear this appeal.

Why did the Supreme Court stop the estate distribution in Kenya?+

The Court stopped distribution because the appeal raises a serious constitutional question about Islamic law versus equality rights. If the estate was shared before the appeal, the case would become pointless. The Court also said the issue affects many Muslims, so a pause serves public interest.

How does this ruling affect Muslim succession in Kenya?+

Until the Supreme Court decides the appeal, estate distributions for Muslims who die without a will are on hold. The final ruling will clarify whether Islamic inheritance rules or constitutional equality rights take priority, affecting how future estates are shared.

Can I still inherit if I am a Muslim in Kenya during this case?+

If you are a beneficiary in a pending succession case, distribution may be delayed until the Supreme Court decides. You should consult a lawyer to understand how this stay affects your specific situation and whether you can still claim your share.

Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Faraj v Mwawasi & 2 others", Case Analysis (2024). Application E050 of 2023. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2024/61/eng@2024-10-18

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