In re Mwakulagizwa

3. The Petitioner herein pleaded that the Deceased herein passed away a Muslim and intestate on the 16th June, 2011 at his residence in Kinondo Location within Msambweni Sub-county as it appears in the certicate of death attached hereto. 4. On the face of the petition specically at Para 6 the petitioner herein pleaded that the Deceased upon his death was survived by the following: 5. a. Ali Mwinyikai Chombola …. Son b. Riziki Mwinyi Mwakulagizwa …. Daughter c. Mwanamisi Juma Mwang’ombe …. Granddaughter d. Mwanapili Hamisi Mwinyi …. Granddaughter The Petitioner pleaded that the deceased had no liabilities/debts at the time of his death and that during his lifetime he had acquired a property known as Kwale/Galu Kinondo/179. The matter was heard on the 31st August, 2026. The Petitioner stated that the deceased herein is her late father. She stated exactly what was pleaded in the pleadings. She further stated that her late father the deceased herein upon his death was survived by the following: a. Riziki Mwinyikai Mwakulagizwa …. Daughter b. Ali Mwinyikai Chombola …. Son c. Hamisi Mwinyikai Mwakulagizwa …. Son d. Mwanamkuu Mwinyikai Mwakulagizwa …. Daughter 6. She contends that before the administration of the Estate of the deceased two (2) of the deceased’s children died. The two are Hamisi Mwinyikai Mwakulagizwa and Mwanamkuu Mwinyikai Mwakulagizwa, however, they were survived by their heirs/beneciaries. 7. She avers that there is a time they conducted search of the suit property and found the records at the land registry showing a dierent proprietor. She further avers that upon learning that as family of the deceased moved the Environment and Land Court at Kwale challenging the ownership of the property and successfully convinced the court to make a declaration that the suit property belongs to the deceased herein. 8. She stated that the family convened a meeting and unanimously agreed to transmit the Estate property through her and one Mwanapili Hamisi Mwinyi as Trustees. She stated that the distribution of the Estate property be conducted as per Islamic law of inheritance. 9. On cross examination by the bench she stated that the deceased was survived by Riziki, Ali, Hamisi and Mwanamkuu. She further stated that Hamisi and Mwanamkuu are no more but are survived by their spouses and six (6) issues each. She contends that all the beneciaries of her two departed siblings are aware of the court proceedings. 10. Pw1 was Mwanapili Hamisi Mwinyi who happens to be a granddaughter of the deceased herein. She stated that her late father is a son of the deceased herein. She contends that her late father died after the deceased’s death before the administration of the Estate. She further contends that her late father was survived by; Mwanarusi Swalehe (widow), Mwanapili Hamisi (daughter), Mwanatumu Hamisi (daughter), Salim Hamisi (son), Mwanasha Hamisi (daughter) and Swaleh Hamisi (son). She avers that her sister Mwanatumu Hamisi is the one who facilitated her with fare to and from court. She further avers that her mother and all her siblings are aware of the court proceedings. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/865/eng@2026-09-03 2

page 2 of 6

11. Pw2 was Mwanamisi Juma Mwang’ombe who happens to be a granddaughter of the deceased herein. She stated that her mother one Mwanamkuu Mwinyi Mwakulagizwa is a daughter of the deceased herein. She contends that her late mother was survived by her widower and six (6) children. She stated that her siblings are as follows; Mwanamisi Juma (daughter), Mwanasha Juma (daughter), Arafa Juma (son), Omar Juma (son), Mohamed Juma (son) and Mwinyi Juma (son). She further stated that her father and all her siblings are aware of the court proceedings. On cross examination by the bench she stated that her father is still alive, lives in Msambweni Dzibwage. She stated that her father is aware of the court proceedings. She avers that when her late mother died she was still a legal wedded wife to her father. 12. Muslim law didn’t recognize the concept of administration/trustee of estate. In contrary, it has laid down machinery for the administration of the estate of the deceased among the legatees and the heirs. 13. The concept of administration of estate was introduced in Kenya for the rst time by the British rule. 14. In modern Kenya, the administration of the deceased Muslim is governed by law of succession Act Cap 160, where they are not inconsistent with those of Muslim laws. 15. It should be noted that the substantive law that is applicable to the estate of a deceased Muslim is Muslim law as provided by Sec 2 (3) of the Act. 16. When a Muslim die without appointing an executor, or dies intestate there is no harm in approaching the court of law in obtaining letters for administration for the purpose of: a. Collecting and preserving the estate of the deceased. b. Paying all charges against the estate. c. Paying debts and legacies d. Distributing the remaining property among the rightful heirs …. Among others. 17. I am therefore satised that the basic requirement under the law of succession Act (Cap 160) and substantive Islamic law of succession has been met. 18. I have carefully considered the pleadings together with the oral submission of the Petitioner herein and this Honorable court frames the following as issues for determination: 1. Whether the Honourable court should appoint the Petitioner herein Kyalo Musyoki as administrator of the estate of the deceased herein. 2. What constitute the estate of the deceased herein 3. Who are the deceased rightful heirs and their shares? 4. Mode of distribution 19. On the issue of appointing the Petitioner herein Riziki Mwinyi Mwakulagizwa as administrator, it is clear from the evidence adduced in court that the there is consensus by the members of the family specically the heirs of the deceased, that the Petitioner herein be appointed as administrator of the estate of the Deceased. The Petitioner led a family consent dated 5th of August, 2026 to support his averments. 20. For the above reasons the court is pleased to appoint Riziki Mwinyi Mwakulagizwa of ID/No. 105xxx22 as Administrator of the Estate of the Deceased herein. However, for the issuance of grant of letters of Administration Intestate, I do hereby advise the Petitioner to follow the due process of P & A. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/865/eng@2026-09-03 3

page 3 of 6

21. In regard to the issue of what constitute the Estate of the estate of the deceased, based on the pleadings specically para 5 of the petition, together with the certicate of adjudication search dated 5th August, 2022, a court decree issued by the ELC Court of Kenya at Kwale on the 2nd June, 2026 and the evidence adduced in court, the parcel of land known as Kwale/Galu Kinondo/179 belonged to the deceased herein and is registered under his name the name as the sole proprietor. 22. In determining the issue based on the aforesaid above, this Honourable court is pleased to declare that the parcel of land known as Kwale/Galu Kinondo/179 forms part of the Estate of the deceased herein. 23. In regards to the issue of who are the rightful heirs of the deceased, from the evidence adduced by the Petitioner together with the witnesses, it is clear that the deceased upon his death was survived by four (4) issues; two (2) sons and two (2) daughters. According to the evidence two of the four issues of the deceased died before the administration of the Estate. And that they were survived by their spouses and six children each. 24. According to the substantive Islamic law of inheritance, Islamic inheritance requires the following: 25. 26. a. Death of the Owner (Al- Muwarrith): Conrmed physically or by legal/judicial decree. b. Survival of Heirs (Al- Warith): The heir must be alive at the time of the deceased’s death. A fetus in the womb can inherit if born alive. c. Existing Estate (Al- Mawruth): There must be property, assets, or rights left by the deceased to be inherited. d. Valid Relationship: The relationship (blood or marriage) must be legitimate. Adopted children do not inherit. Based on the foregoing I do hereby pleased to declare that the rightful heirs of the Deceased herein are as follows: a. Ali Mwinyi Chombola …. Son b. Riziki Mwinyi Mwakulagiszwa …. Daughter c. Hamisi Mwinyi Mwakulagizwa …. Son (Now Deceased) d. Mwanamkuu Mwinyi Mwakulagizwa …. Daughter (Now Deceased) In determining the rightful shares of inheritance, the court’s attention is drawn to Holy Quran chapter 4 verses 11. “ Allah instructs you concerning your children: (i.e. their portions of inheritance) for the male, what is equal to the shares of two females. But if there are (only) daughters, two or more, for them is two thirds of one’s estate. And if there is only one, for her is half. And for one’s parents, to each one of them is a sixth of his estate if he left children …” Q: 4:11 27. That the above verse does specify that children inherit an Estate of their late parent in a manner that a share of a male child is twice the share of a female child. In the instant matter the rightful heirs are four siblings. Therefore, each son inherits 2/6 and that each daughter inherits 1/6 share. 28. It is worthy to note that two of the four heirs died after their late father the deceased herein, but before the administration and distribution of the Estate, therefore their respective shares devolve to their heirs/beneciaries. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/865/eng@2026-09-03 4

page 4 of 6

29. In nutshell this Honorable court hold the following terms: 1. That the parcel of land known as Kwale/Galu Kinondo/179 forms part of the Estate of the Deceased herein. 2. That the rightful heirs of the Deceased herein and that they inherit the Estate property in equal shares: a. Riziki Mwinyi Mwakulagizwa …. Daughter b. Ali Mwinyi Chombola …. Son c. Hamisi Mwinyi Mwakulagizwa …. Son (Now Deceased) d. Mwanamkuu Mwinyi Mwakulagizwa …. Daughter (Now Deceased) 3. That this Honorable court is hereby pleased to vest the Estate property in the heirs in their respective shares. 4. That the share of the late Hamisi Mwinyi Mwakulagizwa being 2/6 of the Estate is hereby devolves to the following; Mwanarusi Swalehe (widow), Mwanapili Hamisi (daughter), Mwanatumu Hamisi (daughter), Salim Hamisi (son), Mwanasha Hamisi (daughter) and Swaleh Hamisi (son). 5. That the share of the late Mwanamkuu Mwinyi Mwakulagizwa being 1/6 of the Estate be and hereby devolves to the following; Juma Mwan’ombe (widower), Mwanamisi Juma Mwang’ombe (daughter), Mwanasha Juma Mwang’ombe (daughter), Arafa Juma Mwang’ombe (son), Omar Juma Mwang’ombe (son), Mohamed Juma Mwang’ombe (son) and Mwinyi Juma Mwang’ombe (son). 6. That this Honourable Court is hereby pleased to appoint the Petitioner herein Riziki Mwinyi Mwakulagizwa of ID/No. 105xxx22 as Administrator of the Estate of the Deceased herein for purposes of distribution. 7. That the County Land Registrar, Kwale, be and hereby ordered to transmit the Estate property through the Petitioner herein Riziki Mwinyi Mwakulagizwa of ID/No. 105xxx22 & Mwanapili Hamisi Mwinyi of ID/No. 330xxx48 as Trustees. These are orders of the court. DATED, SIGNED AND DELIVERED IN THE OPEN COURT ON THIS 03RD DAY OF SEPTEMBER, 2026. HON. HABIB SALIM VUMBI SENIOR PRINCIPAL KADHI Delivered in the open court in the presence of the following: Mr. Sha Mwahima …. Court Assistant Mr. Kabiaro Advocate for the Petitioner SIGNED BY/FOR: THE JUDICIARY OF KENYA HON. HABIB SALIM VUMBI(SPK) https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/865/eng@2026-09-03 5

page 5 of 6

KWALE KADHI COURT KADHI COURT DATE: 2026-09-03 11:37:20 https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/865/eng@2026-09-03 6

page 6 of 6