In the Matter of the Estate of Ismail Osman Adam (Deceased) - Noorbanu Abdulrazak v Abdulkader Ismail Osman

High Court of Kenya

30 July 2009

MOM. Odero

1,731 words in judgment

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The bottom line

A Kenyan daughter lost her challenge to her father's will because she waited nine years after the estate was confirmed before going to court.

What this practically means

Executive summary

The Applicant, a daughter of the deceased Ismail Osman Adam, sought by Chamber Summons dated 9th March 2005 the revocation or annulment of the grant of probate issued to her brother, the Respondent Abdulkader Ismail Osman, the sole executor under a will dated 28th January 1987 which left the immoveable property (Plot No. Mombasa/Block XVII/Parcel 66) to two sons and excluded her. She raised four grounds: non-disclosure and misrepresentation, lack of testamentary capacity, invalidity of the will, and entitlement to reasonable provision as a dependant under section 26 of the Law of Succession Act. The court noted all parties were Muslims and that the matter ought properly to have been heard before the Kadhis Court, where the Applicant had initially filed Succession Cause 50 of 2001 before the Respondent thwarted it via judicial review proceedings. The court found the Applicant qualified as a dependant under section 29(a), but held her application was time-barred under section 30 of the Act, which mandatorily bars applications after confirmation of a grant. The grant was confirmed on 14th September 1992; the Applicant knew of the will's contents from 1991, had legal counsel, and never sought leave to extend time. Her nine-year delay was inexcusable. Following the Samuel Mburu Njoroge precedent, the application was dismissed in its entirety with no order as to costs.

Key legal issues

Limitation under section 30 of the Succession Act

Holding

The application, filed nine years after confirmation of the grant, is time-barred; section 30 is mandatory and the Applicant should have sought an extension of time, which she never did

Reasoning

The will was read to the Applicant after her father's death in 1991, so she knew of her exclusion. The gazette notice and six-month confirmation period gave her ample opportunity to object. She had legal counsel yet neither objected nor sought leave to extend time. Her explanation of waiting for her brothers was rejected. The court followed the Koome J precedent dismissing a similar five-year-delayed application.

p. 3

Dependant status under sections 26 and 29(a)

Holding

The Applicant, as a biological daughter, qualifies as a dependant entitled to seek reasonable provision, but this entitlement is defeated by the limitation bar

Reasoning

Section 29(a) defines a dependant to include the children of the deceased whether or not maintained immediately prior to death. The Applicant's status as a biological child was uncontested, so she was properly covered. However, the court held it could not entertain the merits of her objection because the application was time-barred under section 30.

p. 2

Proper forum for Muslim succession disputes

Holding

The court observed the matter ought properly to have been heard before the Kadhis Court since all parties are Muslims, but proceeded to determine it as filed

Reasoning

All parties being Muslims, the court considered the Kadhis Court the proper forum, noting the Applicant had initially filed Succession Cause 50 of 2001 there and the Kadhi had ruled he had jurisdiction. The Respondent thwarted that case through judicial review proceedings. The court nonetheless determined the limitation question under the Succession Act as the governing statute.

p. 2

Legal principles established

Once a grant of representation has been confirmed, no application under Part II (dependant's provision) of the Succession Act may be brought; section 30 is mandatory
A beneficiary who sits on her rights after learning of a will's contents cannot revive them years after confirmation of the grant

Court orders

1.The Chamber Summons dated 9th March 2005 seeking revocation/annulment of the grant of probate is dismissed in its entirety
2.No order as to costs

Authorities

Legislation

Law of Succession ActSection 26
Law of Succession ActSection 29(a)
Law of Succession ActSection 30
Law of Succession ActSections 76(a) and (c)
Law of Succession ActSection 71

Cases cited (1)

In the Estate of Samuel Mburu Njoroge
Succession Cause 2508/1999
Dismissal of a dependant's application made five years after confirmation of the grant, applied to support the limitation bar

Jurisdiction invoked: Succession Act Cap 160, ss. 26, 29(a), 30, 76(a) and (c)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "In the Matter of the Estate of Ismail Osman Adam (Deceased) - Noorbanu Abdulrazak v Abdulkader Ismail Osman", Case Analysis (2009). Succession Cause 121 of 1991. Source: https://new.kenyalaw.org/akn/ke/judgment/kehc/2009/1610/eng@2009-07-30

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