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KadhiPartially AllowedSuccession Case No. 29 of 2017· [2019] KEKC 12 (KLR)

Ibrahim Mohamed Leo & another v Hussein Mohamed Leo & 4 others [2019] KEKC 12 (KLR)

Kadhi's Court at Moyale
6 March 2019
2,590 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 confirmed it can distribute a deceased Muslim's estate but protected buyers who had registered their plots, ordering the remaining land valued for sharing.

What this practically means

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Executive summary

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The petitioners, personal representatives of the estate of Mohamed Geno Lio alias Ahmed Geno Leo, sought orders evicting the respondents from the deceased's plots at Manyatta Burji, Harbora, Mado Adi and Mansile, a declaration that the respondents were intermeddlers, an injunction against trespass including over land in Ethiopia, fines and imprisonment for intermeddling, and protection from harassment. The 1st Respondent raised a preliminary objection on jurisdiction over Ethiopian land and res judicata; in a ruling of 3rd December 2018 the Ethiopian land was struck out for lack of jurisdiction while the res judicata objection failed. The 2nd to 5th Respondents each proved purchase of their respective plots from the 1st Respondent, with agreements, registration applications, payment of plot rent to the County Government of Marsabit, and in the 5th Respondent's case bank evidence that sale proceeds of Kshs 450,000 were remitted to the 1st Petitioner through the assistant chief's account. Applying Article 170(5), the Kadhi found jurisdiction existed over the estate of a deceased Muslim. The court held the estate comprised the plots at Manyatta Burji and land at Mado Adi, the claims over Harbora and Mansile failing for want of evidence. It found the 1st Respondent sold plots without beneficiaries' consent but, the purchasers having registered their plots, directed that status quo be maintained. The remaining parcels were ordered to be valued within two months, with leave granted to the 1st Petitioner and 1st Respondent to conduct the valuation. Costs were to be in the cause.

Key legal issues

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01

Jurisdiction of the Kadhi's Court

Holding

The court has jurisdiction over the estate of a deceased Muslim where the parties profess the Muslim religion and submit to its jurisdiction, but not over land in Ethiopia

Reasoning

Applying Article 170(5), the Kadhi identified three determinants of jurisdiction: subject matter, parties' faith and submission. The subject matter revolved around the estate of a deceased Muslim and was not disputed, so jurisdiction existed over the Kenyan estate. However, in the interlocutory ruling of 3rd December 2018, the piece of land in the Federal Democratic Republic of Ethiopia was struck out for lack of jurisdiction, while the res judicata objection failed.

p. 4
02

Constituents of the deceased's estate

Holding

The estate comprised the plots at Manyatta Burji and the land at Mado Adi; Harbora and Mansile were not proved to form part of the estate

Reasoning

The petitioner listed several properties but no documentation was availed. No dispute was recorded regarding the lands at Manyatta and Mado Adi, which therefore form the estate. The claim to Harbora and Mansile failed for want of evidence, the 1st Respondent having testified that Harbora was taken by the Government during the deceased's lifetime and that Mansile belonged to him personally, supported by witness evidence.

p. 4
03

Intermeddling and protection of purchasers

Holding

The 1st Respondent sold part of the Manyatta Burji plots without consent of the beneficiaries, but as the 2nd to 5th Respondents had registered their plots and paid plot rent, status quo was to be maintained

Reasoning

The court found the 1st Respondent sold portions of the Manyatta Burji plots to the 2nd, 3rd and 4th Respondents without beneficiaries' consent, and sold to the 5th Respondent on behalf of the 1st Petitioner, as evidenced by the assistant chief. Nevertheless, the purchasers had duly registered their plots and remitted annual plot rent to the County Government of Marsabit, so the court directed that status quo be maintained rather than ordering eviction.

p. 4

Legal principles established

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  • Jurisdiction of the Kadhi's Court is determined by three factors: the subject matter, the parties' faith, and the parties' submission to the jurisdiction of the court
  • Under Islamic Shariah law the onus of proving a case vests upon the petitioner who claims the right while the taking of oath rests upon the respondent who denies the right

Court orders

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  1. 1.That status quo be maintained, the 2nd to 5th Respondents having duly registered their respective plots and remitting annual plot rent to the County Government of Marsabit
  2. 2.That the remaining parcels of land at Manyatta Burji and that of Mado Adi be valued and the valuation report be presented in court within 2 months
  3. 3.That the 1st Petitioner and 1st Respondent be granted leave to do the said valuation
  4. 4.That costs be in the cause

Authorities

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Legislation

  • Law of Succession Actsection 4
  • Law of Succession Actsection 45(1)(a) and (2)
  • Law of Succession Actsection 47
  • Probate and Administration Rulesrules 47 and 73
  • Constitution of KenyaArticle 170(5)
Jurisdiction invoked
Article 170(5) of the Constitution; sections 4, 45(1)(a) & (2) and 47 of the Law of Succession Act Cap 160; rules 47 and 73 of the Probate and Administration Rules

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, "Ibrahim Mohamed Leo & another v Hussein Mohamed Leo & 4 others [2019] KEKC 12 (KLR)", Case Analysis (2019). Succession Case No. 29 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2019/12/eng@2019-03-06

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