Salim Abdalla Maalim v Famau Madi Shosi
The bottom line
#Kenya's Court of Appeal ruled a Muslim cannot dedicate their entire property as wakf, leaving heirs with nothing.
What this practically means
#Executive summary
#Key legal issues
#Validity of the wakf under the Wakf Commissioners Act
A valid wakf must be made in accordance with Muslim law and have the ultimate benefit reserved for the poor or a permanent charitable purpose; these requirements are conjunctive.
Section 4(1) of the Wakf Commissioners Act sets two conjunctive requirements: the wakf must be made in accordance with Muslim law, and the ultimate benefit must be expressly or impliedly reserved for the poor or a permanent religious, pious or charitable purpose. Breach of either invalidates the wakf. The deceased's wakf of his entire property to a madrassa, a non-heir, left his heirs destitute and offended Muslim law's limit on testamentary disposition.
Second appeal confined to matters of law
The Court on second appeal accepts the findings of fact below and interferes only where no reasonable tribunal could have reached the conclusion.
Guided by Kenya Breweries v Godfrey Odoyo, the Court resisted delving into matters of fact, confining itself to questions of law unless the courts below considered matters they should not have, failed to consider matters they should have, or the decision is perverse.
Whether the consent of legal heirs is required for a wakf
The Court declined to determine this issue as it was covered by the first three grounds and unnecessary given the wakf's invalidity.
The Court held the consent issue was subsumed within the first three grounds of appeal and need not be gone into; the issue of whether the wakf covered the entire property was superfluous because the wakf by its wording bequeathed the entire property to one non-heir beneficiary.
Legal principles established
#- On a second appeal the Court of Appeal confines itself to matters of law only.
- The requirements of a valid wakf under section 4(1) of the Wakf Commissioners Act are conjunctive; breach of any one invalidates the wakf.
- A wakf disposing of a Muslim's entire property to a non-heir, leaving the heirs destitute, is invalid under Muslim law.
Court orders
#- 1.The judgment of the High Court is affirmed and the appeal is dismissed in its entirety
- 2.The proceedings are remitted back to the Kadhi Court to distribute the property of the deceased between the widow and brother of the deceased, the legal heirs, in accordance with Muslim Law
- 3.No order as to costs
- On appeal from
- High Court at Mombasa
- Civil Appeal No. 11 of 2016
- Jurisdiction invoked
- Second appeal to the Court of Appeal, confined to matters of law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Salim Abdalla Maalim v Famau Madi Shosi", Case Analysis (2022). Civil Appeal 99 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/518/eng@2022-05-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.