Ibrahim Mohamed Leo & another v Hussein Mohamed Leo & 4 others [2019] KEKC 12 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction of the Kadhi's Court
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
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.
Constituents of the deceased's estate
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
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.
Intermeddling and protection of purchasers
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
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.
Legal principles established
#- 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
#- 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.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.That the 1st Petitioner and 1st Respondent be granted leave to do the said valuation
- 4.That costs be in the cause
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.