In re Estate of Joseph Kiptoo Cheruiyot alias Abubakar (Succession Cause E002 of 2024) [2024] KEKC 23 (KLR)

Article 170(5) and Section 5 of the Kadhi's Court Act limit the Kadhi's Court to questions of Muslim law where all parties profess the Muslim religion and submit to the Court. The Respondents' counsel categorically stated they neither profess the faith nor submit, and the Petitioners did not challenge this, confirming it. The Kadhi acknowledged the submission clause could be abused to frustrate parties, citing the Islamic principle that deeds are judged by intentions, but found no basis to question the Respondents' sincerity here.

The Kadhi's Courts Act does not govern administration of estates; that is provided by the Law of Succession Act Cap 160 and the Probate and Administration Rules. Section 45(1) of the Law of Succession Act prohibits intermeddling with a deceased's free property without authority. As the Petitioners held no Grant of Representation when filing, they had no capacity to institute the application.

Sections 13(4) and 26(3) of the Environment and Land Court Act show land matters are not exclusive to that Court. The Kadhi reasoned that in succession matters involving land where ownership is undisputed - for example beneficiaries intermeddling with a deceased's land - beneficiaries may seek orders like those sought here from the Kadhi's Court. However, this reasoning did not save the application since the objection succeeded on the faith/submission and capacity grounds.