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KadhiDismissedPetition dated 10th January 2019· [2019] KEKC 11 (KLR)

In re Estate Of Adan Jirmo Bonboo (Deceased) [2019] KEKC 11 (KLR)

Kadhi's Court
11 March 2019
AWA. D. Wako
911 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan Kadhi's Court ruled that step-children raised by a deceased man are not legal heirs, dismissing their claim to his plot in Moyale.

What this practically means

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Executive summary

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The petitioner petitioned the Kadhi's Court at Moyale by notice of motion dated 10th January 2019 seeking distribution of plot No. 651 in Butiye, Moyale town, registered in the name of his late father, among the rightful heirs in accordance with Islamic law of succession, plus costs. He asserted the plot belonged to his deceased father, who was survived by his mother, widow and five sons; that the 1st Respondent, said to be the deceased's sister, obstructed the heirs; and that the 2nd Respondent claimed to have purchased part of the plot from the 1st Respondent for Kshs 200,000 before the area chief and elders. The 1st Respondent denied the claim, asserting she inherited the plot from her late father Alike Kotoma, that she was his only biological child, and that the petitioner was her half-brother sharing only a mother. The petitioner's grandmother, Mrs. Bilach Galgalo Mudale, testified the plot belonged to the late Alike, who married her with four children including the petitioner's father, and that the plot was later registered in the name of the deceased Adan Jirma. The court framed two issues: ownership of the plot and the legal heirs. It found, on unchallenged testimony corroborated by the chief and elders, that the plot belonged to the late Alike Kotoma. Applying Quran 4:7, it held that upbringing and caregiving do not confer heirship, and that the only legal heirs are the 1st Respondent and her mother. The petition was dismissed; the sold portion was confirmed as the 1st Respondent's share, the 2nd Respondent's purchase was upheld, the earlier order of 11th January 2019 was vacated, the remainder was awarded to Mrs. Bilach Galgallo, and costs were made costs in the cause.

Key legal issues

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01

Ownership of plot No. 651 in Butiye, Moyale

Holding

The plot belonged to the late Alike Kotoma, father of the 1st Respondent, not to the petitioner's father

Reasoning

The petitioner's grandmother admitted under oath that the late Alike owned the plot before he married her, and she moved onto it with her four children after the marriage. This evidence was unchallenged and was corroborated by the area chief and elders. On that uncontradicted testimony the court found ownership vested in the late Alike Kotoma.

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02

The legal heirs of the estate under Islamic law

Holding

The only legal heirs are the 1st Respondent and her mother, Mrs. Bilach Galgallo; the petitioner and his siblings, being step-children raised by the deceased, are not lawful beneficiaries

Reasoning

The evidence proved the petitioner's father and his siblings were not biological children of the late Alike; they were brought up by him after he married their mother. Under sharia, caregiving or upbringing does not confer heirship. Accordingly the petition seeking distribution to the petitioner's family lacked merit and was dismissed, with the sold portion confirmed as the 1st Respondent's share.

p. 2

Legal principles established

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  • Inheritance is an integral part of sharia law; there is a legal share for relatives of the decedent in his estate
  • Being raised by, or caring for, a deceased person does not of itself make one a lawful beneficiary under Islamic succession law

Court orders

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  1. 1.That the part of plot no. 651 that was sold by the 1st respondent to the 2nd respondent is considered her share from the estate
  2. 2.That the 2nd respondent be granted the part of the plot no. 651 she bought from the 1st respondent and the earlier order of the court dated 11th January 2019 is vacated
  3. 3.That the remaining part of the said plot be the share of Mrs. Bilach Galgallo, the mother of the 1st respondent
  4. 4.Costs be in the cause

Authorities

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Legislation

  • The Quran4:7
Jurisdiction invoked
Islamic law of succession as applicable in 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 Adan Jirmo Bonboo (Deceased) [2019] KEKC 11 (KLR)", Case Analysis (2019). Petition dated 10th January 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2019/11/eng@2019-03-11

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