In re Estate of Abdulaziz Ahmed (Deceased) (Succession Cause 2 of 2015) [2025] KEKC 18 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Legal Errors and misinterpretations in the judgment and decree of this Honorable Court dated 29th June 2015 and 30th May 2016 respectively.
- 2.Fairness and justification of the Kshs. 12,204,000 rental incomes.
- 3.Irregularity in the sale of piece of land title No. SUGUTA MARMAR 'A'/X.
- 4.Inaccuracy in list of properties forming the estate of the deceased.
- 5.Ownership of Land No. 1X4 at Maralal Loikas.
- 6.Whether the Court can grant stay of execution of its ruling dated 20th February 2025, the decree dated 30th May 2016 and issue temporary injunction against the respondent/applicant to cease any sale and transfer and sale of the suit properties.
Key legal issues
#Whether the judgment and decree erred in distributing the estate
No error; the court awarded percentages of shares per Islamic succession principles, not actual properties.
The court examined the judgment and decree and found that no beneficiary was awarded a specific property. Instead each beneficiary received a percentage share of the total estate in accordance with Islamic law: the widow an eighth, and the remainder divided among children with a male taking twice a female's share. The applicant's contention that the respondent was awarded five of six assets was therefore misconceived.
Whether the rental income award of Kshs. 12,204,000 was erroneous and unfair
The court reviewed its own arithmetic and found the correct computation to be Kshs. 12,312,000, but declined to vary the decree as the applicant failed to estimate collections and expenses to justify variation.
The court recalculated rent at Kshs. 57,000 per month for 18 years, arriving at Kshs. 12,312,000 rather than 12,204,000, and redistributed per Islamic shares. However, the applicant, who acknowledged rent was not steady and that no records were kept, failed to estimate what was actually collected and spent, so no basis for review was established.
Whether the sale of SUGUTA MARMAR 'A'/X was irregular intermeddling warranting deduction from shares
The issue was not raised in the original suit and was not addressed in the judgment; it cannot be raised for the first time on review.
The sale agreement showed the land was sold a year after the deceased's demise, before the succession cause was filed, and that the deceased's share of proceeds was payable to the estate through the parties' late brother, who was not shown to have shared proceeds with the respondent. The respondent was not mentioned in the agreement. The issue was never raised in the original proceedings.
Whether stay of execution and injunction should issue
Dismissed; the applicant failed to establish substantial loss as required for stay.
Relying on James Wangalwa & Another v Agnes Naliaka Cheseto, the court held that execution being set in motion does not itself amount to substantial loss. The applicant merely averred but failed to substantiate that execution would cause substantial or irreparable loss, and the respondent pointed out the applicant had fully participated in the original proceedings without raising a preliminary objection.
Legal principles established
#- An applicant for stay of execution must prove that execution will probably cause substantial loss; mere averment without substantiation is insufficient.
- A Kadhi's court has no jurisdiction to determine disputes over ownership of land; that jurisdiction is exclusively conferred on the Environment and Land Court.
Court orders
#- 1.The application for review, stay of execution and injunction is dismissed
- 2.Dismissal with no costs (each party to bear own costs)
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 47, 48, 50(1) and 159 of the Constitution of Kenya, 2010; Order 45 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act
Relief refused
#Stay of execution of the ruling of 20th February 2025 and the decree of 30th May 2016
Applicant failed to substantiate substantial loss
Review and/or variation of the judgment and decree
The judgment and decree did not err in law
Temporary injunction restraining sale and transfer of suit properties
Application failed; applicant did not prove irreparable loss
Claim of irregular sale of SUGUTA MARMAR 'A'/X and deduction of proceeds
Issue was not raised in the original proceedings and not addressed in the judgment
Challenge to ownership of Land No. 1X4 at Maralal Loikas
No documentary evidence filed; and land ownership disputes fall outside Kadhi's Court jurisdiction
Costs
Application dismissed with no costs (each party to bear own costs)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I conclude that the application fails in that the judgment of this Court dated June 29, 2015 and its decree dated June 30, 2016 did not err in law and the application be and is hereby dismissed with no cost.
the applicant in any circumstances must prove that the execution will probably cause substantial loss, that is the cornerstone. The applicant/first contemnor has just averred but failed to substantiate that.
the court will not have jurisdiction to entertain the matter as that jurisdiction is exclusively conferred to the Environment and Land Court (ELC) by the Section 13 of the Environment and Land Court Act No.19 of 2011 and Section 150 of the Act No. 6 of 2012.
the Honorable Court did not award anyone any of the actual properties forming the estate of the deceased and instead, the Court distributed the percentage of shares each beneficiary is supposed to get from the estate in according to the Islamic principles of succession which I do agree with.
Issues in the judgment
#The judgment inconsistently dates the decree as 30th May 2016 and the judgment as 29th June 2015, yet at one point refers to 'its decree dated June 30, 2016' and elsewhere to the decree as 'deriving from its judgment entered on 29th June 2025' and a filing 'on 10th July 1018' - typographical date errors.
The court recalculates the rental income as Kshs. 12,312,000 rather than the 12,204,000 in the decree, but does not explain why the decree is nonetheless not varied.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In re Estate of Abdulaziz Ahmed (Deceased) (Succession Cause 2 of 2015) [2025] KEKC 18 (KLR)", Case Analysis (2025). Nakuru Kadhi's Court Succession Cause No. 2 of 2015 (Review Application). Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2025/18/eng@2025-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.