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KadhiAllowedSuccession Case No 04 of 2016· [2016] KEKC 11 (KLR)

In re Estate of Omari Hiribae Omari (Deceased) [2016] KEKC 11 (KLR)

Kadhis Court at Garsen
13 June 2016
RORashid K. Otundo
1,515 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Garsen Kadhi's Court ruled that a deceased Muslim's estate must be divided under Islamic inheritance law, not general Kenyan succession rules.

What this practically means

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Executive summary

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In this miscellaneous succession cause, the petitioner, a son of the deceased Omari Hiribae Omari (who died on 4 October 2002 and was a driver at the Ministry of Health at Hola), sought the immediate release of the estate held by the Public Trustee at Mombasa and its distribution to the heirs according to Islamic law. Acting on a referral from the Public Trustee, the Kadhi's Court at Garsen heard the petitioner and his witnesses, whose testimony was uncontroverted. The court held that although administration of a deceased Muslim's estate in modern Kenya is governed by the Law of Succession Act, Cap. 160, the substantive law applicable is Muslim law by virtue of Section 2(3) of the Act, and that Muslim law proper does not recognise the concept of administration of estates, that concept having been introduced by British rulers. Applying Quran Chapter 4, verses 11 and 12, the court declared the deceased's heirs - two widows and eight children of a polygamous family - and distributed the estate in percentage shares: 6.25% to each widow, 14.583% to each son and 7.292% to each daughter. The court ordered the Administrator-General, Public Trustee, Mombasa, to release the estate immediately, vesting it in the heirs in the indicated shares, and appended a penal notice warning of contempt for non-compliance. No costs order was made.

Key legal issues

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01

Applicable substantive law to a deceased Muslim's estate

Holding

Islamic law applies, subject only to consistency with the Law of Succession Act, Cap. 160.

Reasoning

The court held that administration of a deceased Muslim's estate in modern Kenya is governed by the Law of Succession Act, Cap. 160, only where not inconsistent with Muslim law. Section 2(3) of the Act makes Muslim law the substantive law for a Muslim's estate. The Kadhi therefore applied Quranic inheritance verses (Chap. 4, verses 11 and 12) to determine shares, with sons taking double the daughters' share and each widow one-sixteenth here.

p. 3
02

Entitlement of the heirs and distribution of the estate

Holding

The court declared the ten surviving heirs and distributed the estate in fixed percentage shares under Islamic inheritance law.

Reasoning

Accepting the petitioner's uncontroverted, unrebutted and unchallenged testimony, the court found the deceased was survived by two widows and eight children. Applying Quran 4:11-12, it declared percentage shares: 6.25% for each widow, 14.583% for each son and 7.292% for each daughter, totalling 100%, and vested the estate in them in those shares.

p. 3

Legal principles established

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  • The substantive law applicable to the estate of a deceased Muslim is Muslim law as provided by Section 2(3) of the Law of Succession Act.
  • Muslim law did not recognize the concept of administration of estate; that concept was introduced in Kenya by the British rulers.

Court orders

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  1. 1.That the Administrator-General, Public Trustee, P.O. Box 80366-80100 Mombasa, releases immediately the stated estate to court as prayed and as Muslim law directs
  2. 2.That the estate vests in the ten heirs in the shares indicated (widows 6.25% each; sons 14.583% each; daughters 7.292% each)
Jurisdiction invoked
Law of Succession Act, Cap. 160, including Section 2(3), directing matters of Muslim estates to the Kadhi's court

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, "In re Estate of Omari Hiribae Omari (Deceased) [2016] KEKC 11 (KLR)", Case Analysis (2016). Succession Case No 04 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2016/11/eng@2016-06-13

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