Farooq & 3 others v Ramadhan (Civil Appeal 30 of 2019) [2024] KECA 1774 (KLR)
The bottom line
#Kenya's Court of Appeal threw out a High Court decision that handed out a deceased Muslim's estate before the administration grant was properly confirmed.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial court constructively confirmed the grant of letters of administration it issued to the respondent before the lapse of six months.
- 2.Whether the constitutional issues urged by the appellants and submitted on by the respondent ought to have been raised first before the trial court.
Key legal issues
#Whether the trial court could distribute the estate and appoint the administrator without gazettement and confirmation of the grant
The court erred: it distributed the estate and constructively confirmed the grant when no application for confirmation was before it, contrary to Sections 55 and 71(3) of the Law of Succession Act.
At the time the objection and cross-petition were filed, no grant had been gazetted or issued; the issues before the trial court were only the appointment of an administrator and identification of beneficiaries. Distribution was not pleaded, and no application under Section 71(3) for early confirmation existed. The judge therefore went beyond the issues and offended Section 55(1), which prohibits distribution of capital assets before confirmation of the grant. The distribution order could not stand.
Whether the constitutional discrimination arguments could be entertained on appeal
Declined; the issues were raised for the first time on appeal and ought to have been urged before the trial court.
The appellants argued that applying Islamic inheritance writings violated Articles 27(4) and 32 of the Constitution. The respondent countered that the issues were never specifically pleaded below, contrary to Mumo Matemu, and that Section 2(3) of the Law of Succession Act effects a legitimate differentiation fostering legal pluralism. The Court held the issues attractive but improperly raised for the first time on appeal, depriving the court of first instance of the opportunity to pronounce on them.
Appellate review of findings of fact
The Court reiterates the standard: it may re-evaluate the whole evidence but must exercise caution in disturbing factual findings.
Under Rule 31(1) of the Court of Appeal Rules, 2022, the first appellate court subjects the entire evidence to fresh scrutiny and reaches its own conclusions, but without the trial court's advantage of seeing witnesses. Findings of fact should not be overturned unless premised on no evidence, perverse, or based on irrelevant considerations or ignored relevant ones, per Peters vs Sunday Post and Mwangi vs Wambugu.
Legal principles established
#- A High Court seized of a succession dispute cannot distribute a deceased's estate, nor confirm a grant, before confirmation of the grant in accordance with Section 71 of the Law of Succession Act; distribution of capital assets before confirmation offends Section 55(1).
- Where the estate of a deceased Muslim is administered by the High Court, the applicable law is Islamic law by virtue of Section 2(3) of the Law of Succession Act.
- Constitutional issues raised for the first time on appeal, without having been pleaded and determined at the trial court, will generally not be entertained.
Court orders
#- 1.Judgment and Order of Gacheche, J. delivered on 18th March 2011 set aside
- 2.Matter remitted to the High Court for prosecution and determination of the appellants' objection to the making of the grant dated 25th October 2007
- 3.Upon determination of the objection and issuance of the grant, the administrator(s) shall apply for confirmation and distribution of the estate, with any disputes over properties, beneficiaries and mode of distribution to be determined by the Court
- 4.Each party to bear his/her own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- High Court of Kenya
- Nairobi Succession Cause No. 1679 of 2007
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal Act and Rule 31(1) of the Court of Appeal Rules, 2022
Relief refused
#Constitutional claims of discrimination under Articles 27(4) and 32 of the Constitution
Raised for the first time on appeal; should have been urged before the trial court
Appellants' prayer that their cross-petition be allowed outright
Matter remitted to the High Court for determination of the objection instead
Costs
This being a family matter, each party shall bear his/her own costs for this appeal.
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, fiowing from our finding on the first issue discussed above, we set aside the Judgement and Order issued by Gacheche, J. in Nairobi High Court Succession Cause 1679 of 2017, delivered on 18th March, 2011
in lieu thereof, we issue an order remitting the matter to the High Court for the prosecution and determination of the appellants’ objection to the making of the grant dated 25th October, 2007.
This being a family matter, each party shall bear his/her own costs for this appeal.
It is a strong thing for an appellate court to difier from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses.
No grant of representation, whether or not limited in its terms, shall confer power to distribute any capital assets constituting a net estate, or to make any division of property, unless and until the grant has been confirmed as provided by Section 71.
Instead, the learned Judge constructively confirmed the grant in favour of the respondent yet there was no application before her seeking its confirmation prior to the expiry of 6 months.
Issues in the judgment
#The judgment inconsistently states the High Court succession cause number, referring to it as 1679 of 2007 at the start and 1679 of 2017 in the final orders.
The memorandum of appeal is dated 18th January 2019 against a judgment delivered on 18th March 2011, an unexplained gap the judgment does not address.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Farooq & 3 others v Ramadhan (Civil Appeal 30 of 2019) [2024] KECA 1774 (KLR)", Case Analysis (2024). Civil Appeal (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1774/eng@2024-12-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.