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KadhiPartially AllowedSuccession Cause (notice of motion dated August 20, 2020; cross petition dated May 18, 2021) - number not stated in judgment· [2022] KEKC 159 (KLR)

In re Estate of Dilawar Khan & Hava Bhai Khan (Deceased) (Succession Cause E012 of 2020) [2022] KEKC 159 (KLR)

Kadhi's Court
10 November 2022
AAAbdulhalim H. Athman
3,629 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 revoked a Muslim father's will that favoured some children, ruling his estate must be divided strictly according to Islamic inheritance shares.

What this practically means

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Executive summary

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This Kadhi's Court decision concerned the estate of Dilawar Khan, a Sunni Muslim who died in Makkah in 2010 during Hajj, survived by a wife, one son and four daughters. The estate comprised a four-bedroom maisonette, LR No 209/10721/83 in Halai Estate, South C, Nairobi. The respondent petitioned for letters of administration intestate, while the objector, his sister, cross-petitioned for probate of handwritten wills dated May 23, 2003 and October 31, 2010; the latter bequeathed the house to the two unmarried daughters. The parties agreed on a joint grant but disputed the will's validity. The court framed five issues, including the applicable law, the requirements and limitations of wills under Islamic law, and the mode of distribution. It held that Muslim estates are governed by Islamic law, not the Law of Succession Act, citing Article 170(5) of the Constitution and sections 2(3) and 48(2) of the Act. It found the 2010 will valid in form but invalid in substance because it bequeathed property to heirs and disinherited other heirs, contrary to Qur'anic shares and hadith prohibiting bequests to heirs. The will was declared invalid and revoked, and the estate devolves under Q 4.11, 4.12 and 4.176: the son 45%, each surviving daughter 22.5%, and the widower of a predeceased daughter 10% via al-munaskhat. Notice of a joint grant was granted, subject to gazette publication fees and confirmation in the stated shares; a claim over Tanzanian bank accounts failed for want of evidence.

Key legal issues

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01

Applicable law in succession of deceased Muslims

Holding

Islamic law of succession, not the Law of Succession Act, applies to deceased Muslims

Reasoning

Article 170(5) of the Constitution confers jurisdiction on the Kadhi's court over questions of Islamic law in inheritance between Muslims; section 2(3) of the Law of Succession Act exempts Muslim estates and section 48(2) confirms Kadhi's court jurisdiction. Case law cited (Chelanga v Juma; Estate of Ali Shitialo Ibrahim) confirms this. Only Part VII on letters of administration applies where not inconsistent with Muslim law.

p. 2
02

Validity of the 2010 will

Holding

The will is valid in form but invalid in substance for bequeathing the house to two daughters (heirs), thereby disinheriting other heirs

Reasoning

Islamic law allows wills but limits them to one-third of the estate and only to non-heirs. Bequeathing to heirs interferes with the Qur'anic allocation of shares (Q 4.11) and amounts to an attempt to disinherit heirs, which all schools of Islamic jurisprudence prohibit. Only a last will is recognised; the 2003 will was replaced by the 2010 will, which was declared invalid and revoked.

p. 6
03

Devolution of shares of predeceased beneficiaries

Holding

Under Islamic law a predeceased beneficiary's proportionate share devolves to their own heirs (al-munaskhat)

Reasoning

Unlike common law, a beneficiary's rights are not extinguished by death. Imtiaz (unmarried, childless) died first; her share devolved to her four siblings, males taking twice the female share (Q 4.176). Gulnar's 20% share devolved to her husband (one-half) and her siblings in the ratio 2:1 (Q 4.12 and 176), yielding the final shares: son 45%, each daughter 22.5%, son-in-law 10%.

p. 7

Legal principles established

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  • The Law of Succession Act does not apply to estates of deceased Muslims; their estates devolve under Muslim law
  • Under Islamic law a will may only be in favour of non-heirs and limited to one-third or less of the estate
  • A will bequeathing to heirs and disinheriting other heirs offends Islamic law and is invalid to the extent of the inconsistency

Court orders

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  1. 1.The will dated October 31, 2010 is declared invalid and revoked
  2. 2.The estate shall be distributed pursuant to Q 4.11, 12 and 176 - son 45%, each surviving daughter 22.5%, son-in-law (widow of predeceased daughter) 10%
  3. 3.Notice of grant of letters of administration jointly in the parties' names is granted, subject to payment of fees for gazette publication and eventual confirmation of the grant in the stated shares
  4. 4.Any heir with evidence of other properties of the estate may apply for their inclusion in the estate
Jurisdiction invoked
Article 170(5) of the Constitution of Kenya, 2010 and sections 2(3) and 48(2) of the Laws of Succession Act, Cap 160

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 Dilawar Khan & Hava Bhai Khan (Deceased) (Succession Cause E012 of 2020) [2022] KEKC 159 (KLR)", Case Analysis (2022). Succession Cause (notice of motion dated August 20, 2020; cross petition dated May 18, 2021) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2022/159/eng@2022-11-10

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