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KadhiAllowedSuccession Petition (not stated in judgment)· [2025] KEKC 15 (KLR)

In re Estate of the Late Make Salehe (Deceased) (Succession Cause E068 of 2025) [2025] KEKC 15 (KLR)

Kadhi's Court
17 April 2025
AAAbdulhalim H. Athman
1,063 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Kadhi's Court confirmed it handles inheritance for Muslim families, dividing a Kilifi ancestral land among heirs under Islamic law.

What this practically means

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Executive summary

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This was an uncontested petition in the Kadhi's Court at Mombasa seeking determination of the estate and legal heirs of the late Make Salehe, who died in 1910 at Mombasa, leaving a parcel of land, Portion No. 600 (1.376 acres) in Kilifi District at Mambrui, and prayer for appointment of an administrator/trustee. The court founded its jurisdiction on Article 170(5) of the Constitution, Section 5 of the Kadhi's Court Act, Cap 11, and Sections 2(3) and 48(2) of the Laws of Succession Act, Cap 160, which confine devolution of a deceased Muslim's estate to Muslim law. The court framed two issues: what constitutes the estate, and the legal heirs and their respective shares. It found the land constituted the estate; it had originally belonged to Swaleh bin Hemed, survived by three sons and Make Salehe. By prior family consent, the primary heirs took equal 25% shares, since Ali bin Amman had protected the land from squatters. The court traced devolution through the several branches, applying Q.4.11 so that surviving daughters took a maximum 50% of their father's estate and sons took twice a daughter's share, and computed percentage shares for widows, sons and daughters of Hemed bin Swaleh, for Khadija bint Suleiman's heirs, and for Ali bin Amman's children. The court declared that the estate devolves to the heirs in the shares indicated, appointed Abdulghafur bin Hemed bin Swaleh as trustee/administrator, and directed the Land Registrar – Kilifi to effect transmission accordingly.

Key legal issues

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Jurisdiction of the Kadhi's court over Muslim intestate estates

Holding

The court has jurisdiction over inheritance of estates of deceased Muslims conferred by Article 170(5) of the Constitution, Section 5 of the Kadhi's Court Act, and Sections 2(3) and 48(2) of the Laws of Succession Act.

Reasoning

The court traced its jurisdiction to Article 170(5) of the Constitution which limits Kadhi's court jurisdiction to questions of Muslim law on personal status, marriage, divorce or inheritance where all parties profess Islam and submit to the court. Section 2(3) of the Laws of Succession Act excludes Muslims from the Act, while Section 48(2) confirms the Kadhi's court's continuing jurisdiction over estates of deceased Muslims.

p. 2
02

Constituents of the estate and devolution to heirs

Holding

The estate comprises land Portion No. 600 (1.376 acres) at Mambrui, which devolves to the enumerated heirs in the respective shares computed under Muslim law, with a son taking twice a daughter's share.

Reasoning

On the uncontested petition, the court found the land originally belonged to Swaleh bin Hemed, survived by three sons and Make Salehe. A family consent had earlier equalized the primary shares at 25% each because Ali bin Amman protected the land from squatters. The court then traced devolution through the heirs, computing daughters' shares at 50% of their father's estate per Q.4.11, and sons taking twice the female share.

p. 2

Legal principles established

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  • The jurisdiction of a Kadhi's court is limited to determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance where all parties profess the Muslim religion and submit to that jurisdiction.
  • Under Islamic law of inheritance, a daughter is entitled to a maximum of 50% of her father's estate, with a son taking twice the share of a daughter.

Court orders

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  1. 1.Determination that the parcel of land Portion No. 600 measuring 1.376 acres in Kilifi District at Mambrui constitutes the estate of the late Make Salehe
  2. 2.Determination of the legal heirs of the deceased and their respective percentage shares as set out in the judgment
  3. 3.Abdulghafur bin Hemed bin Swaleh appointed Trustee/administrator of the estate of Make Salehe
  4. 4.The Land Registrar – Kilifi to effect transmission of the estate to Abdulghafur bin Hemed as Trustee/administrator of the estate of Make Salehe
Jurisdiction invoked
Article 170(5) of the Constitution of Kenya 2010; Section 5 of the Kadhi's Court Act, Cap 11; 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 the Late Make Salehe (Deceased) (Succession Cause E068 of 2025) [2025] KEKC 15 (KLR)", Case Analysis (2025). Succession Petition (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2025/15/eng@2025-04-17

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