Abdi Mohamed & another v Saidi Mohamed [2018] KEKC 32 (KLR)
The bottom line
#A Kenyan Kadhi's Court confirmed that a deceased Muslim's estate must be distributed under Muslim law, and a 24-year-old dormant grant could not block the succession case.
What this practically means
#Executive summary
#Key legal issues
#Whether the 1994 grant and certificate of confirmation bar the present cause as res judicata
The court declined to hold the cause res judicata; although a grant was confirmed in Cause 25 of 1994 allocating all assets to German Mohamed, the record did not show the grant was operative, and it had become useless and inoperative through subsequent circumstances under section 76(e).
The court acknowledged the res judicata principle under section 7 of the Civil Procedure Act but noted the record in Cause 25/1994 was unclear whether the grant was nullified. What was clear was that a grant was confirmed and a certificate issued following an objection, allocating all assets to German Mohamed as administrator. However, the grant was obtained in 1994 and nothing had changed - the estate remained registered in the name of Musa Odera Wambale - rendering the grant useless and inoperative under section 76 of the Act after 24 years.
Whether the estate of a Muslim deceased is distributable under Muslim law notwithstanding the Law of Succession Act
Yes. Under sections 2(3) and (4) and 48(2) of Cap 160, the devolution of a Muslim's estate is governed by Muslim law, with Part VII on administration applying only where consistent with Muslim law; distribution must be per Quranic shares.
The court invoked sections 2(3), 2(4) and 48(2) of the Law of Succession Act, which exclude the Act's application to a Muslim's estate in favour of Muslim law, while permitting Part VII administration provisions where not inconsistent with Muslim law. Relying on Nazima Janmohammed Nassar v Nasreen Kauser, the court held that regardless of forum, the estate of a deceased Muslim is determined using Muslim law, and that after representation the estate should be distributed in Quranic shares.
Whether new documents (certificate of confirmation, grant, will) introduced on 2/2/2018 should be admitted
The documents were not admitted because they were not produced during the hearing; their introduction was a tactic to delay enjoyment of the judgment, though the will had been expansively argued during hearings.
The court observed that the matter had progressed since 2014 through pleadings, hearings and a consent judgment, and the beneficiaries never objected to the format of filing. The certificate of confirmation and grant were never produced despite court orders to present documents including title deeds. Their late introduction, fronted by the respondent and the advocate for some beneficiaries, sought to negate over three years of proceedings. The court refused to allow it as it would waste the court's time and deny the parties justice.
Legal principles established
#- The estate of a deceased Muslim is governed by Muslim law; the Law of Succession Act does not apply to testamentary or intestate succession of a Muslim except where Part VII on administration is not inconsistent with Muslim law
- Kadhi's courts retain jurisdiction over estates of deceased Muslims for determination of inheritance questions in accordance with Muslim law
- A grant that has become useless and inoperative through subsequent circumstances may be revoked or annulled under section 76 of the Law of Succession Act
- Muslim law does not recognise the concept of administration of an estate; the primary mechanism is immediate distribution among heirs in their Quranic shares
Court orders
#- 1.The suit petition relating to the estate of German Mohammed, being the same estate in question, to proceed to determination of the application filed on 19/9/2017 by the respondent, as Islamic law allows distribution of the estate in accordance with the Quranic shares after representation
- 2.The petition may be amended to qualify and capture the arguments of the advocates
- 3.Hearing set for 8/3/2018
- Jurisdiction invoked
- Section 48(2) of the Law of Succession Act (Cap 160) and Section 5 of the Kadhis' Courts Act - Kadhi's court jurisdiction over estates of deceased Muslims in accordance with Muslim law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abdi Mohamed & another v Saidi Mohamed [2018] KEKC 32 (KLR)", Case Analysis (2018). Succession Cause 37 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2018/32/eng@2018-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.