In re Khadija Jama alias Khadija Jama Farah (Deceased) (Succession Cause E130 of 2021) [2023] KEKC 2 (KLR)
The bottom line
#A Kenyan Kadhis' Court refused to revoke an estate grant, ruling that not every heir's consent is needed and valid contracts by administrators stand.
What this practically means
#Executive summary
#Key legal issues
#Grounds for revocation of grant under section 76
The grant was not shown to be obtained defectively, fraudulently or by concealment; the applicant was listed as a beneficiary and publication/gazettement affords him an opportunity to object, so revocation was unwarranted
The court outlined the section 76 grounds as summarised in John Mundia Njoroge. The applicant claimed lack of knowledge and non-consent, but under Islamic law applicable to this estate all heirs have the same right to petition and consent of all heirs is not required. The grant was limited and not yet gazetted, and the applicant was recognised as a beneficiary, so he suffered no demonstrated prejudice.
Validity of the joint venture agreement with Rasmal International Ltd
The agreement was valid, having been entered into by duly authorised administrators pursuant to a court order
The administrators obtained the limited grant specifically to enter the joint venture, upon a successful application to court. Section 93(1) of the Law of Succession Act renders contracts with third parties by duly authorised administrators valid and non-revocable, so the agreement had the court's blessing and could not be disturbed.
Whether the applicant met the test for an interlocutory injunction
The applicant failed to demonstrate irreparable damage, and the balance of convenience favoured the respondents given the father's substantial share and need for medical care
Applying Giella v Cassman Brown sequentially, the applicant did not demonstrate irreparable injury not compensable in damages. Granting the injunction would cause the respondents greater harm, considering the elderly father's larger share in the property, his urgent need to benefit from it, and the ramifications of breaching the contract with the third-party developer.
Legal principles established
#- Revocation of a grant under section 76 is discretionary; the court may instead protect heirs' rights by other orders
- Where the deceased and heirs are Muslims, the Islamic law of inheritance applies and the requirement for all heirs' consent to a petition is inconsistent with it
- A contract entered into with a third party on estate property by a duly authorised administrator is valid
- The Giella v Cassman Brown conditions for interlocutory injunctions are applied sequentially
Court orders
#- 1.The summons for revocation of grant dated April 1, 2022 is dismissed
- 2.The applicant to pay costs of the application
- Jurisdiction invoked
- Sections 2(3), 48(2), 76 and 93(1) of the Law of Succession Act, Cap 160 Laws of Kenya (Islamic law of succession)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In re Khadija Jama alias Khadija Jama Farah (Deceased) (Succession Cause E130 of 2021) [2023] KEKC 2 (KLR)", Case Analysis (2023). Summons for revocation of grant dated April 1, 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2023/2/eng@2023-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.