https://new.kenyalaw.org/akn/ke/judgment/kekc/2026/10

 REPUBLIC OF KENYA IN THE KADHI COURT OF KENYA AT KWALE COUNTY COURT NAME: KWALE KADHI COURT CASE NUMBER: KCSUCC/E127/2026 IN THE MATTER OF THE ESTATE OF NDEGWA MALUKI ALIAS NDEGWA MARUKI (DECEASED). PETITIONER : RASHID BENARD NDEGWA. JUDGMENT Death is inevitable. For the fact that death is a channel through which every living soul must pass through, when it comes, and the deceased usually leaves behind an estate. As a result, Islam being a complete way of life has spelt out how the deceased’s estate should be shared among his relations as ordained by Allah. By estate, I mean the entire property a deceased leaves behind such as houses, cars, clothes, furniture, land, farm, jewelers, cash (at hand and in bank), shares, bonds, gratuity and so on including socks and underwear; everything subhanallahu. The petitioner herein while in person moved this Honourable court vide an uncontested petition dated 15th Day of July, 2026 and filed in court on the 16th July, 2026. The petition was accompanied by a verifying affidavit; Petitioner’s statement, list of witnesses, list of documents attaching certificate of death of the deceased herein, letter dated 14th July 2026 from the Mwaluphamba area Senior Chief, copy of title deed KWALE/KIRAZINI A/266, certificate of official search dated 8th July, 2026, family consent dated 14th July, 2026 further affidavit sworn on 15th July, 2026 and copies of birth certificates and identification of the heirs. The petitioner herein prayed the court the following prayers: - 1. Determination of heirs 2. Distribution of Estate according to Islamic law 3. Vesting Orders of Estate to heirs **NDEGWA MALUKI Alias NDEGWA MARUTI** passed away a Muslim and intestate on 24th July, 1987 at his residence in Kinango, Mwaluphamba Location within Matuga Sub - County as it appears in the certificate of death attached hereto. On the face of the petition specifically at Para 3 the petitioner herein pleaded that the Deceased upon his death was survived by the following: * 1. Rashid Benard Ndegwa …. Son 2. Hamisi Chikereso Ndegwa …. Son 3. Chizi Ndegwa Kombo …. Daughter At the time of **NDEGWA MALUKI Alias NDEGWA MARUKI’S** death, he left the following unencumbered and available property known as KWALE/KIRAZINI A/266. The Petitioner herein pleaded that the deceased herein at the time of his death had no liabilities/debts. The matter was heard on the 3rd of August, 2026. The Petitioner herein was heard and he stated exactly what was pleaded in the petition. He stated that the Deceased herein upon his death was survived by a widow and three (3) issues; a daughter and two (2) sons. He further stated that the widow who happens to be their mother died before the administration of the Estate. He contends that the deceased herein during his lifetime acquired a property parcel of land known as KWALE/KIRAZINI A/266. He avers that the family convened a meeting and resolved that the estate property be transmitted through the heirs. Pw1 was Hamisi Ndegwa who happens to be a son of the Deceased herein. He stated that the deceased herein is his late father and that upon his death he was survived by a widow and three (3) issues. That the widow later died before the administration of the Estate. He contends that the distribution of the Estate property be effected in accordance with the Islamic Law of inheritance. Pw2 was Chizi Ndegwa Kombo who happens to be a daughter of the Deceased herein. She stated that the deceased is her late father. She contends that the distribution be effected in according to Islamic law of inheritance. 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. 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. 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: - 1. Collecting and preserving the estate of the deceased. 2. Paying all charges against the estate. 3. Paying debts and legacies. 4. Distributing the remaining property among the rightful heirs …. Among others. I am therefore satisfied that the basic requirement under the law of succession Act (Cap 160) and substantive Islamic law of succession has been met. I have considered the pleadings and the oral submission and this Honorable court frames the following as issues for determination: 1. What constitute the Deceased estate 2. Who are the rightful heirs of the Estate of the Deceased? 3. Mode of Distribution In regards to the issue of what constitute the deceased Estate, looking at the pleadings specifically Para 5 of the petition, the oral submission together with the documentary evidence presented in court by the Petitioner specifically the title Number KWALE/KIRAZINI A/266 together with certificate of official search dated 8th July, 2026, it is clear that the parcel of land known as KWALE/KIRAZINI A/266 is registered under the name of the Deceased herein as sole proprietor. Pursuant to Land Act sec 30 (3) states as follows: - # “A certificate of title or certificate of lease shall be prima facie evidence of the matters shown in the certificate, and the land or lease shall be subject to all entries in the register”. My understanding of the Act is that the name appearing in the title document or lease is the owner and that factual evidence cannot negate legal principle. In determining the issue based on the evidence this Honourable court is hereby pleased to declare that the parcel of land known as KWALE/KIRAZINI A/266 constitute the Estate of the Deceased herein. In regards to the issue of who are the rightful heirs of the deceased, it is not is dispute that the deceased upon his death was survived by a widow and three (3) issues; a daughter and two (2) sons. According to the substantive Islamic law of inheritance, Islamic inheritance requires the following: 1. ***Death of the Owner (Al- Muwarrith):*** Confirmed physically or by legal/judicial decree. 2. ***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. 3. ***Existing Estate (Al- Mawruth):*** There must be property, assets, or rights left by the deceased to be inherited. 4. ***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 following are the rightful heirs of the deceased herein: 1. Rashid Benard Ndegwa …. Son 2. Hamisi Chikereso Ndegwa …. Son 3. Chizi Ndegwa Kombo …. Daughter It is worth noting that the deceased herein was also survived by a widow who happens to be the mother of the rightful heirs of the deceased. The widow later died but before the administration of the deceased and since she was the mother of all the heirs herein, this Honourable court shall treat her presence during the deceased’s death as her absence and her share will be absorbed and evolved in her children. 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 The above verses do specify that children of a deceased person inherit the Estate in manner that the share of a male child is twice the share of a female child. In the instant matter the rightful heirs are three siblings; a sister and her two brothers. Therefore the share of the daughter is 20% (1/5) and each son is entitled to 40% (2/5). Nevertheless, given the Qur’anic specification, it appears that, male siblings inherit double the amount inherited by his sister but there is one vital justification on variations. The amount inherited by the sister is a net amount added to her wealth. This is a consequence of the rule of maintenance under Islamic law; women have no duty to maintain themselves or others while males are obliged to support them. A woman has exclusive right of disposal over her property where she inherits it or earns it. She has no financial obligation/liability of maintaining over her children. The husband is bound to maintain her and her children however considerable her wealth may be. The amount inherited by a brother is a gross amount from which he will have to deduct the expenses of supporting the various women, elderly men and children in the family. Thus, the share given to a man is in proportion to his responsibilities and not due to any superiority over the female. # In Ibrahim Aboobaker and Anor. Vs. Teik Chand Dolwan and Others. Reported in AIR 1953 SC 298; (1954) 56 BOMLR6 wherein is stated that: ***“It’s well recognized proportion of law that the estate of a deceased Mohammedan devolves on his heirs in specific shares at the moment of his death……”*** These facts illustrate what jurists have known all along namely that inheritance law under Islamic law are quite complicated and cannot be reduced to a single slogan. It is the view of the court that the provision of Mawarith (succession) given each heir his divinely fixed shares. In nutshell this Honorable court hold the following terms: 1. THAT the parcel of land known as KWALE/KIRAZINI A/266 constitute the Estate of the Deceased herein. 2. THAT the rightful heirs of the Deceased herein and their share are as follows: 1. Rashid Benard Ndegwa …. Son 2. Hamisi Chikereso Ndegwa …. Son 3. Chizi Ndegwa Kombo …. Daughter 3. THAT the daughter is entitled to 20% (1/5) and that each son is entitled to 40% (2/5). 4. THAT this Honourable court is hereby pleased to vest the estate property in the heirs in their respective shares. 5. That the County Land Registrar, Kwale, to transmit the Estate property through the rightful heirs in their respective shares. These are orders of the court. **Dated, signed and delivered in the open court on this 13th Day of August, 2026. HON. HABIB SALIM VUMBI** **SENIOR PRINCIPAL KADHI** **Delivered in the open court in the presence of the following: - Mr. Shaffi Mwahima …. Court Assistant** **Petitioners ……………………………………….** SIGNED BY/FOR: **□ TH E JUDICIAR Y O F KENY A ★** **HON.HABIB SALIM VUMBI(SPK)** Kwale Kadhi Court Kadhi Court Date: 2026-08-13 11:02:03