In re Estate of Said Abdalla Azubedi (Deceased) - Sheha Anwar & 2 Others v Feisal Said & Others
The bottom line
#Grandchildren can challenge the Kadhi's Court and claim inheritance, but they must actively prove their case in court.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the High Court over an application concerning a succession cause pending in the Kadhi's Court
The High Court has jurisdiction to entertain the application and to transfer a case from the Kadhi's court to the High Court.
Article 170(5) limits the Kadhi's Court to disputes where all parties profess the Muslim religion and submit to its jurisdiction; submission is voluntary and must be unanimous. Section 48(2) of the Law of Succession Act preserves Kadhi's Court jurisdiction over deceased Muslims' estates, but the High Court retains jurisdiction under Section 47. Since the applicants did not submit to the Kadhi's Court, the High Court may entertain the application.
Locus standi of grandchildren whose parents predeceased the deceased
Grandchildren claiming to have been maintained by the deceased have locus standi as dependants under Section 29, so long as the grant has not been confirmed (Section 30).
Section 29(b) of the Law of Succession Act includes grandchildren being maintained by the deceased immediately prior to death among dependants. Whether the applicants were actually maintained, and whether their parents predeceased the deceased, are matters for proof through evidence; for locus standi purposes their claim suffices. Section 30 bars such applications only after confirmation of the grant, and no confirmation was alleged.
Whether the substantive prayers (transfer and appointment as administrators) should be granted
Dismissed - the applicants abandoned prosecution of their application and failed to prove their claims on a balance of probabilities.
Prayers 1-3 were spent. On the substantive prayers, the applicants bore the burden of proof under Sections 107 and 109 of the Evidence Act. Having failed to file submissions or participate in prosecuting the application despite repeated chances, their pleadings remained mere allegations and could not found the orders sought.
Legal principles established
#- Submission to the jurisdiction of the Kadhi's Court by Muslims is voluntary and must be unanimous by all parties; where all parties, though Muslims, do not agree, the Kadhi's Court lacks jurisdiction.
- Grandchildren maintained by the deceased are dependants under Section 29 of the Law of Succession Act and have locus standi to bring an application, provided the grant has not been confirmed.
- The Civil Procedure Act and Rules are not applicable in succession matters unless specifically imported by the Law of Succession Act.
Court orders
#- 1.The application is dismissed
- 2.Parties will bear their respective costs of the application
- Jurisdiction invoked
- Articles 159, 160, 169(1) and 170(5) of the Constitution; Sections 47, 48(2) and 29 of the Law of Succession Act (Cap. 160)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In re Estate of Said Abdalla Azubedi (Deceased) - Sheha Anwar & 2 Others v Feisal Said & Others", Case Analysis (2020). Notice of Motion dated 10th February 2020 (Nairobi Kadhis Succession Cause No. 63 of 2019 referred). Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.