Pascal v Hyder (Petition 120 of 2015) [2016] KEKC 40 (KLR)
The bottom line
#A Mombasa Kadhis' Court divided a deceased man's inheritance among his mother, widow, son and daughter strictly under Qur'anic shares, rejecting unproven property claims.
What this practically means
#Executive summary
#Key legal issues
#Constitution of the estate
Only a half share in two Mtongwe plots (Mombasa/MS/II/126 and Mombasa/MS/II/111) belonged to the deceased's father's estate; the properties cited by the petitioner were not estate property
The petitioner produced no evidence supporting her list of properties. The respondent produced titles showing the Diani and Mombasa properties were registered to third persons (Mohamed Hyder Matano and Samira Hyder Matano). The respondent admitted the estate consisted of the net half share of proceeds of the jointly-owned plots, which he had sold under a confirmed grant.
Shares of the heirs under Islamic law
Mother 12/72 (16.66%), widow 9/72 (12.5%), son 34/72 (47.22%), daughter 17/72 (23.61%)
Applying Qur'anic faraid provisions: the mother takes one-sixth, the widow one-eighth where the deceased left a child, and the son takes twice the share of the daughter. The residue is divided between son and daughter at 2:1.
Quantum payable to petitioner
The joint share of the widow and two children was KES 332,683.58; after deducting KES 192,835.00 disbursed (mainly school fees), the balance of KES 139,848.58 was to be paid to the petitioner for herself and the children
The court accepted the respondent's account, finding the expenses were attributed to the whole estate, not only the deceased's share. Considering the age of the children, the whole balance was payable to the petitioner on their behalf.
Legal principles established
#- Where a deceased is survived by a mother, widow, one son and one daughter, under the Qur'an the mother takes one-sixth, the widow one-eighth, and the son twice the share of the daughter
- The widow is entitled to one-eighth where the deceased left a child
Court orders
#- 1.A half share in Mombasa/MS/II/126 and Mombasa/MS/II/111 forms the estate of Hyder Mohamed Kindy
- 2.Aly Hyder Mohamed's share in his father's estate is 10.29% of 50% of the proceeds of sale
- 3.Distribution of the deceased's share to his heirs: mother 16.66%, widow 12.5%, son 47.22%, daughter 23.61%
- 4.The balance due to the widow and children on A H, being KES 139,848.58, be issued to the petitioner on her own behalf and on behalf of the children
- 5.No orders as to costs
- Jurisdiction invoked
- Succession and Islamic inheritance jurisdiction of the Kadhis' Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Pascal v Hyder (Petition 120 of 2015) [2016] KEKC 40 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2016/40/eng@2016-03-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.