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KadhiAllowedCivil Case No. 33 of 2015· [2015] KEKC 18 (KLR)

Zakiya Nasher v Eshe Abdulrahim Awath & another [2015] KEKC 18 (KLR)

Kadhi's Court at Nairobi
30 September 2015
AHA. I. Hussein
541 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi Kadhi's Court declared a mother the rightful heir of her two deceased daughters after her other children agreed to give up their inheritance shares.

What this practically means

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Executive summary

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The Applicant, Zakiya Nasher, mother of the deceased Sabah Abdulrahim Awath and Usra Abdulrahim Awath, filed an originating summons dated 29th July 2015 at the Kadhi's Court at Nairobi seeking two declarations: that the deceased died as Muslims on 3rd January 2014, and that she is their rightful legal heir. The deceased left an unencumbered property, Title No. Embu Municipality/104, valued at approximately Ksh. 17,000,000, and were survived by the Applicant (mother) and the two Respondents (sisters), with no other dependants. The Applicant's claim rested on the Respondents' agreement to relinquish their inheritance rights. The Respondents filed a replying affidavit dated 11th August 2015 confirming the family relationships and agreeing that the Applicant would take the deceased's shares. The parties further recorded a consent agreement dated 26th August 2015 and filed on 14th September 2015 on the mode of distribution. The Kadhi found no dispute between the parties as to distribution and, satisfied by the uncontroverted, unrebutted and unchallenged testimony of the Applicant corroborated by the consent agreement, allowed the application. The court declared that the deceased died Muslims on 3rd January 2014 and declared the Applicant the rightful legal heir of the deceased, with no order as to costs.

Key legal issues

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01

Whether the deceased died as Muslims and who is their rightful legal heir

Holding

The court declared that the deceased died as Muslims on 3rd January 2014 and that the Applicant, their mother, is the rightful legal heir.

Reasoning

The claim was brought by originating summons seeking two declarations. The respondents filed a replying affidavit confirming the relationship and agreeing that the applicant would take the deceased's shares. The parties further recorded a consent agreement dated 26th August 2015 and filed on 14th September 2015 on the mode of distribution. The court found no dispute between the parties and accepted the applicant's unchallenged testimony corroborated by the consent agreement.

p. 2

Legal principles established

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  • Where the evidence of an applicant is uncontroverted, unrebutted and unchallenged, and is corroborated by a consent agreement recorded between the parties, the court may act on it and grant the declarations sought.

Court orders

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  1. 1.Declaration that Sabah Abdulrahim Awath and Usra Abdulrahim Awath died Muslims on 3rd January 2014
  2. 2.Declaration that the Applicant Zakiya Nasher be and is hereby declared as the rightful legal heir of the deceased
  3. 3.No order as to costs
Jurisdiction invoked
Kadhi's Court Act Section 5 Cap 11 Laws of Kenya and Law of Succession Act Section 49(2) Cap 160 Laws of Kenya

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, "Zakiya Nasher v Eshe Abdulrahim Awath & another [2015] KEKC 18 (KLR)", Case Analysis (2015). Civil Case No. 33 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2015/18/eng@2015-09-30

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