In the Matter of Estate of Late GOLLO DUBA (Deceased) - Asili Gollo Duba v Jibril Gollo Duba
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the deceased distributed his plots during his lifetime and with what legal character
The deceased gave two plots to his two sons as inheritance to be owned after his death; this was not a valid gift (no possession taken) nor a valid will (no consent of other heirs, exceeds one-third limit unproven)
The court found from the respondent's own evidence and witnesses that the 2011 meeting was convened to resolve a dispute with Mama Dansa over plots declared for the sons, not to distribute the estate to all dependants. The sons did not take actual possession during the deceased's lifetime, defeating a gift; a bequest to an heir requires the other heirs' consent; and the one-third wasiyyat limit was never established.
Whether Quran 2:180 remains binding on bequests
The verse is abrogated according to the majority of scholars including the four Imams, both in meaning and ruling, including on invalidating a bequest to an heir
The court reasoned that companions left no reports of making such wills; a will is a charitable act not binding in lifetime; and a bequest to an heir is abrogated by the verse of inheritance. Further, the deceased was not on his sickbed and gave the plots seven years before death, and the one-third limit was never established by the respondent.
Whether the Kiwanjani Isiolo plot registered in the name of Mohamed Godana Wako forms part of the estate
Yes; the court found the deceased purchased the plot through his son-in-law Mohamed Godana Wako in whose name it was registered, so it forms part of the estate
The applicant and several witnesses testified the deceased bought and developed the plot through Mohamed Godana as nominee. The land office clarified that the registration in Mohamed Godana Wako's name was an error subsequently rectified. The respondent did not rebut these claims to the required standard, and Safia produced no documents supporting a claim of gift from her former husband.
Mama Dansa's rights in the plot she occupied and helped construct
She has rights in the property, both marital rights under Article 45(3) of the Constitution and a right of inheritance
The plot was acquired and developed during her subsistence marriage with the deceased, and she contributed towards its possession and construction. Upon dissolution of the marriage by death she is entitled to equal rights during the marriage under Article 45(3), and also to her inheritance share as a widow.
Influence of Borana customary practice on the distribution
The deceased's preferential treatment of sons may have been based on the Borana 'andura' practice, which is irrelevant and discriminatory and contrary to Muslim law of inheritance
The court described the andura practice whereby male children are favoured and female children are not allowed to own property. Since the applicable law for a deceased Muslim's estate is Muslim law, and the practice discriminates against female children and contradicts Islamic inheritance rules, it was rejected as a basis for the distribution.
Legal principles established
#- Distribution of one's wealth during lifetime is not a valid division of inheritance under Islamic law; it is valid only as a gift if the conditions of a gift, including transfer of possession and equity among children, are met
- A will (wasiyat) made in favour of an heir cannot be executed except with the consent of all the other heirs
- The verse of Quran 2:180 on bequests is abrogated by the verse of inheritance according to the majority of scholars including the four Imams
- Silence does not in all cases constitute valid acceptance or approval of a division of an estate; consent must be based on knowledge
- Where heirs are in dispute over the mode of distribution, they must follow the mode provided in the Quran and Hadith
- Cultural practices such as the Borana 'andura' concept that discriminate against female children are repugnant to Islamic law of inheritance
Court orders
#- 1.That the plots four (4) in number all of Garbatulla, the plot of Merti and the plot of Kiwanjani Isiolo, all to form part of the estate of the deceased Gollo Duba Oda
- 2.That the plot no. (withheld) of Checheles shall not form part of the deceased estate, since it belongs to a different person
- 3.That the mode of distribution should follow the shares stipulated in the Islamic Shariah law when there is dispute, or according to the agreement of the heirs
- 4.That in case of dispute over mode of distribution, distribution shall follow the specified percentage shares: widows 4.1666% each; each son 14.5833%; each daughter 7.2917%
- 5.That parties are advised to apply for letters of administration as a procedural step, and the estate should be shared after valuation of the property is done through agreement locally or by accredited and certified valuers
- 6.Each side to bear its own cost
- 7.Right of appeal within 30 days from the date of the judgement
- Jurisdiction invoked
- Kadhi's Court jurisdiction over the estate of a deceased Muslim under Islamic Shariah law; Article 159(2)(c) of the Constitution of Kenya 2010 on alternative dispute resolution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In the Matter of Estate of Late GOLLO DUBA (Deceased) - Asili Gollo Duba v Jibril Gollo Duba", Case Analysis (2020). KCSUCC 1 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2020/12/eng@2020-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.