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Court of AppealDismissedCivil Appeal 99 of 2018· [2022] KECA 518 (KLR)

Salim Abdalla Maalim v Famau Madi Shosi

Court of Appeal
6 May 2022
3,058 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled a Muslim cannot dedicate their entire property as wakf, leaving heirs with nothing.

What this practically means

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Executive summary

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This was a second appeal against the High Court's decision setting aside a Principal Kadhi's judgment that had confirmed a wakf of the deceased's sole property, a house on Plot No. 82/1/MN in Frere Town, Mombasa, to madrassa Marajal Bahrain. The appellant, a trustee appointed under a 2004 Wakf Deed, contended the wakf was valid; the respondent heir argued it was invalid, conditional on the donor's death, and that the deceased could not bequeath his entire estate to a non-heir. The High Court, sitting with the Chief Kadhi as Assessor, held the wakf invalid for being conditional and for offending the one-third limit on testamentary disposition, and ordered distribution of the estate to the heirs under Islamic Sharia. The Court of Appeal, confined to matters of law on second appeal, examined sections 2, 3 and 4 of the Wakf Commissioners Act and held that the requirements of a valid wakf are conjunctive: the wakf must accord with Muslim law and reserve the ultimate benefit for the poor or a permanent charitable purpose. Since the deceased disposed of his entire property to a non-heir, leaving his heirs destitute, the wakf was invalid under Muslim law. The Court declined to determine whether heirs' consent is required, finding it unnecessary. It affirmed the High Court judgment, dismissed the appeal in its entirety, remitted the proceedings to the Kadhi Court to distribute the estate between the widow and brother of the deceased according to Muslim law, and made no order as to costs.

Key legal issues

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01

Validity of the wakf under the Wakf Commissioners Act

Holding

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.

Reasoning

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.

p. 5
02

Second appeal confined to matters of law

Holding

The Court on second appeal accepts the findings of fact below and interferes only where no reasonable tribunal could have reached the conclusion.

Reasoning

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.

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Whether the consent of legal heirs is required for a wakf

Holding

The Court declined to determine this issue as it was covered by the first three grounds and unnecessary given the wakf's invalidity.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.The judgment of the High Court is affirmed and the appeal is dismissed in its entirety
  2. 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. 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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.