https://new.kenyalaw.org/akn/ke/judgment/kekc/2026/16

 REPUBLIC OF KENYA IN THE KADHI COURT OF KENYA AT KWALE COUNTY COURT NAME: KWALE KADHI COURT CASE NUMBER: KCSUCC/E117/2026 IN THE MATTER OF ESTATE OF OMARI YUSUF ALIAS OMARI YUSUF MAYINGI: PETITIONER; YAHYA OMARI YUSUF 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. This is an uncontested succession petition. The petitioner herein while in person filed this Succession Petition on the 30th June, 2026. The petition was accompanied by a verifying affidavit, Petitioner’s statement, and Petitioner’s list of documents attaching certificate of death of the deceased herein, introduction letter dated 12th June, 2026 from the area chief, copies of certificate of official searches dated 5th of August, 2025 and 26th June, 2026 respectively, and copy of identity card. The petitioner herein prayed the court the following prayers: 1. Determination of Succession orders 2. Distribution of Estate according to Islamic law3) Vesting Orders of the Estate to heirs. **OMAR YUSUF Alias OMAR YUSUF MAYINGI** passed away a Muslim and intestate on the 1st day of July, 2023 at his residence in Bongwe village, Msambweni Sub-county as it appears in the certificate of death attached herein. On the face of the petition specifically at Para 3 the petitioners herein pleaded that the Deceased upon his death was survived by the following: 1. Yahya Omari Yusuf …. Son 2. Fatuma Omar Yusuf …. Daughter 3. Mwanamisi Omari Yusuf …. Daughter The Petitioner herein pleaded that the parcel of land known as **KWALE/UKUNDA/6835, KWALE/UKUNDA/6834 & KWALE/UKUNDA/6412** were duly registered in the name of the deceased herein as sole proprietor. The Petitioner herein was heard on the 21st of July, 2026. The Petitioner stated exactly what was pleaded in the Petition. He stated that the deceased herein is his late father. He further stated that the deceased upon his death was survived by three (3) issues; a son and two (2) daughters. However, one of the daughters Mwanamisi Omar Yahya was born outside wedlock. He stated that according to his Islamic knowledge a child born outside wedlock doesn’t inherit from his/her father. He further stated that Mwanamisi Omari Yahya was allocated a share by the deceased during his lifetime and that Mwanamisi can retain the said portion. He avers that his mother predeceased the deceased herein. He stated that the distribution be effected in accordance with the Islamic law of inheritance and that the Estate properties be transmitted through Yahya Omari Yusuf, Fatuma Omar Yusuf and Mwanamisi Omari Yusuf. On cross examination by the bench he stated that Mwanamisi Omari Yahya is older than him. He contends that Mwanamisi herself informed him that she was born outside wedlock in their normal conversation in which they were talking about a similar issue from another family. He avers that the deceased during his lifetime treated them equally whether born inside or outside wedlock. He further avers that the deceased didn’t disown Mwanamisi because of her status. He stated that Mwanamisi in her identification carries and bears the name of the deceased as her father. Pw1 was Fatuma Omar Yusuf who happens to be a daughter of the deceased herein. She stated that the Petitioner is her brother. She further stated that the deceased was survived by three (3) issues, however, one of them was born outside the wedlock. She contends that the deceased left a parcel of land. She prays the Honourable court to decide the issue of the child who was born outside wedlock whether to inherit from her father’s Estate or not. Pw2 was Mwanamisi Omari Nropia who happens to be a daughter of the Deceased herein. She stated that the Petitioner is her brother. She further stated that the distribution be effected according to Islamic law of inheritance and that the title deed be registered under the names of the heirs. She avers that she had heard that a child born outside wedlock doesn’t inherit an Estate of his/her biological father. She stated that she was told by her late mother that she was born outside wedlock. She further stated that her grandparents did not contract Islamic marriage and that her late father the deceased herein was born in this relationship. And that her late father the deceased herein inherited the said parcel of land from his late father. 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: a) Collecting and preserving the estate of the deceased. 1. Paying all charges against the estate. 2. Paying debts and legacies 3. 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 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. What constitute the estate of the deceased herein 2. Whether or not a child born outside legal marriage inherit from her/his father’s Estate3) Who are the deceased rightful heirs and their shares? 4) Mode of distribution In regard to the issue of what constitute an Estate of the Deceased herein, from the Succession petition specifically, Para 4 of the Petition together with the documentary evidence specifically the certificates of title deed and the certificate official search dated 5th of August, 2026 and 26th June, 2026 and the evidence adduced in court, it is clear that the parcels of land KWALE/UKUNDA/6864, KWALE/UKUNDA/6412 & KWALE/UKUNDA/6835 are registered in the name of the deceased as sole proprietor. In determining the issue based on the evidence this Honourable Court do hereby declare the following parcels forms part of the Estate of the Deceased herein: a) KWALE/UKUNDA/6835, 1. KWALE/UKUNDA/6834 2. KWALE/UKUNDA/6412 In regard to the issue of who are the rightful heirs of the deceased, from the pleadings and the uncontroverted evidence adduced in court, it is the position of the Petitioner that Mwanamisi Omari Nropia was born outside wedlock, thus, doesn’t qualify to inherit according to his Islamic knowledge of inheritance, but she is at liberty to retain the portion she was allocated and given by the deceased during his lifetime. On the other hand, Mwanamisi Omari Nropia admitted that she was born outside wedlock, and that she has heard that a child born outside wedlock doesn’t inherit the Estate of his/her late father. According to her she is entitled and rightfully heir of the deceased despite being born outside wedlock. She argued that the Estate property subject matter before this court was inherited by her late father the Deceased herein from his father who did not marry his wife according to Islamic Shariah. The issue that MWANAMISI OMARI NROPIA was born outside wedlock is not disputed. The question that arises is whether a child born outside wedlock inherits from his/her father or not? According to the Islamic law of inheritance a Muslim does not inherit an Estate of a nonMuslim and Non-Muslim doesn’t inherit an estate of a Deceased Muslim. ***In the case in the Matter of the Estate of Ishmael Juma Cheklang - Deceased (2002) eKLR, Etyang, J. was faced with a similar case had this to say:*** ***“Under Islamic law no non-Muslim is permitted to inherit the estate of a Muslim. This was ably verified in this court by the Kadhi of Nairobi Mr. Hammat Mohamed Kassim. It follows therefore ……*** Secondly, an illegitimate child does not inherit the estate of his or her father but is permitted to inherit from his or her mother. The reason for this can be found in the Principles of Mohammedan Law by Dr. (Mrs) Nishi Patel 1995 CTS publication Cap XIII at page 251:” ***“LAW OF PARENTAGE: INTRODUCTION*** ***The Law of parentage, which includes paternity and maternity, is the result of the institution of marriage. A Mohammedan marriage is a contract, which confers the status of husband and wife on the parties and a legitimacy on the children. Parentage gives rise to the concepts of legitimacy and illegitimacy. Illegitimacy is totally untolerated and sexual-relations outside marriage are condemned as illicit and the woman who involved in it, it punishable for Zina (fornication).*** Zaid reported Allah’s Messenger (May peace be upon him) as saying: A Muslim is not permitted to inherit from a non-Muslim; a non-Muslim is not entitled to inherit from a Muslim. ***A Muslim is not permitted to inherit anything of the wealth of a non-Muslim relative, as the Prophet (peace and blessings of Allah be upon him) said: “The believer does not inherit from a Kaafir (disbeliever) and the Kaafir does not inherit from a believer.” (Reported by al-bukhaari, al-Fath 4283). According to other report, he said: “The Muslim does not inherit from a Kaafir and the Kaafir does not inherit from a Muslim.”*** The Messenger of Allah (peace be upon him) said: ***“People who belong to two different religions do not inherit from one another.” (Reported v=by Abu Dawud in al-Sunan. Kitab al-Faraa’idh, and deemed hasan by al-Albaani in Saheeh al-Jaami’, 7614 - because when the ties of religion are cut, the ties of inheritance are also cut, because the formed is the basis of the latter.*** Sheikh Ahmad ibn al- Murabit al -Shinqiti, Mauritania’s Grant Mufti, provided a detailed explanation of Islamic jurisprudence on children born out of illicit relationships (*zina*) in the Islamic Jurisprudential Assembly symposium on “The Muslim Family and Contemporary Challenge’s (Al-Shinqiti, 2018). The Grant Mufti’s analysis recalls three distinct legal scenarios regarding child attribution. First, when a married woman bears a child, the child is attributed to the marital bed (*firash*), meaning husband raising a rebuttable presumption, according to prophetic tradition. ***"The child belongs to the bed, and for the adulterer is the stone” (Sahih al-Bukhari, Book of Marriage. Hadith 2053).*** This principal echo Section 118 of the Kenyan Evidence Act, which establishes a rebuttable presumption of legitimacy for any child born within a valid marriage. Secondly, in the event of an unmarried woman giving birth and the biological father not claiming paternity, no attribution occurs. Thirdly, where an unmarried woman bears a child and the biological father acknowledges paternity, this represents the situation most pertinent in our case. This scenario represents the crux of scholarly disagreement and demonstrates as documented by the Garand Mufti, genuine scholarly disagreement (*ikhtilaaf*) with substantial support for either position. **The two Jurisprudential Positions.** **Position One: Prohibition of Attribution (Mojority view)** Supported by the four major school of thought (Hanafi, Malik, Shafi & Hanbali) and the majority of classical scholars, this view holds that children born from adultery cannot be attributed to the biological father, even with acknowledgement. The supporting evidence includes prophetic traditions about the marital bed. ***“The child belongs to the bed (firash), and for the adulterer is the stone” (Sahih al-Bukhari, Book of Marriage, Hadith 2053)*** and early Islamic practice consistently denying lineage to children of adultery. However, the child can be attributed only to the mother and can inherit only from the mother and the maternal side (Al-Shinqiti 7-12). **Position Two: Conditional Attribution (Minority view)** The proponents of this position are Urwa ibn al-Zubayr, Sulayman ibn Yasar, al-Hassan alBasri, Ibn Sirin, Ibrahim al-Naka’I, Ishaq ibn Rahawayhi, Ibn Taymiyyah, Ibn al-Qayyim, and contemporary scholars like Uthaymin (Al-Shinqiti 12 – 16). They hold the view that if there is no other claim or contest to paternity and the biological father affirms paternity, then the child can be attributed to him. In support of their argument, they assert that natural parentage establishes biological paternity, contextual interpretation limits the ‘*bed*’ tradition to cases with paternity disputes between husband and third party during the pendency of the marriage, Caliph Umar’s practice attributing pre-Islamic children to acknowledging fathers, the story of *Jurayj* suggesting divine recognition of biological paternity, and analogical reasoning based on maternal attribution despite illicit relationships. Most significantly, the minority position embraced by scholars such as Ibn Taymiyyah and Ibn al-Qayyim is more in harmony with the “best interest of the child’ principle. This position provides full legal recognition, social integration, economic security, and psychological welfare, removing stigma while ensuring complete family connections and inheritance rights. The Grand Mufti’s balanced exposition is exemplary of the ethical requirement of *amanatul ilm*, the moral responsibility of conveying knowledge truthfully and accurately without bias, even when a scholar holds a contrary opinion. This principal requires scholars, while teaching, judging or advising, to lay out all established positions fairly before offering reasoned preference, it’s a widely accepted norm that knowledge is a trust (*amanah*), and the one who carries it must convey it as it was received, not as they wish it to be. The Grand Mufti’s methodology demonstrates this principle by presenting both majority and minority positions comprehensively before arriving at his preferred school. Ibn al-Qyyim al-Jawziyyah laid down a foundational principle relevant to cases involving the application of Islamic law. in I’lam al- Muwaqqi’in, he stated: ***“The Sharia is founded on wisdom and the welfare of people in this life and the Hereafter. It is entirely justice, entirely mercy, entirely benefit, and entirely wisdom. Thus, any matter that moves from justice to oppression, from mercy to its opposite, from benefit to harm, or from wisdom to folly is not part of the Sharia – even if it is introduced therein by (forced) interpretation” (Ibn al -Qayyim, 1996, vol. 3 p. 3).*** Applied in children’s inheritance rights, any interpretation harming innocent children by denying them economic security and family connection based solely on their parents’ action would constitute a departure from profound Islamic law founded upon the maqaswid sharia (higher objectives of sharia) regardless of classical precedent. In the instant matter the said MWANAMISI OAMRI NROPIA was attributed to her father the Deceased herein with acknowledgement, Mwanamisi enjoyed full legal recognition, social integration, economic security, and psychological welfare, removing stigma while ensuring complete family connections, that I cannot deny. In determining the issue based on the evidence adduced in court and the authorities, I do hereby declare that Mwanamisi Omari Nropia is illegitimate child of the deceased despite the deceased herein acknowledging her and raising her as his daughter however, Mwanmisi Omar Nropia. I am moved to make the decision by the position taken by the four major school of thought (Hanafi, Malik, Shafi & Hanbali) and the majority of classical scholars, this view holds that children born from adultery cannot be attributed to the biological father, even with acknowledgement. The position is based on several authorities includes prophetic traditions about the marital bed. “The child belongs to the bed (firash), and for the adulterer is the stone” (Sahih al-Bukhari, Book of Marriage, Hadith 2053) and early Islamic practice consistently denying lineage to children of adultery. (Al-Shinqiti 7-12). Based on the foregoing this Honorable court hold that the rightful heirs of the deceased herein are as follows: 1. Yahya Omari Yusuf (son) 2. Fatuma Omar Yusuf (daughter). In determining shares of inheritance of the heirs, the court’s attention is drawn to Holy Quran chapter 4 verses 11 and 12. ***“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*** That the verse does specify that the children of a deceased person inherits the estate in manner that a share of a male child is what is equivalent to two shares of a female child. In the instant matter the rightful heirs are two issues of the Deceased herein; a son and a daughter. Therefore, the son is entitled to 66.67% and the daughter is entitled to 33.33. It is worthy to note that during the hearing the Petitioner stated that the Deceased herein before his death had allocated a portion of the parcel of land subject matter for Mwanamisi Omari Nropia, the fact was not disputed, therefore, this court directs that Mwanamisi Omari Nropia do retain not less than the portion of the parcel of land allocated to her by the Deceased herein as her share. In nutshell this Honorable court in determining this matter holds the following terms: 1. THAT the Estate of the Deceased herein is parcels of land known as**KWALE/UKUNDA/6834, KWALE/UKUNDA/6835 & KWALE/UKUNDA/6412.** 2. THAT the rightful heirs of the Deceased herein and their shares are as follows: a) Yahya Omari Yusuf (son), is entitled to 66.67% b) Fatuma Omar Yusuf (daughter), is entitled to 33.33% 1. THAT Mwanamisi Omari Nropia her share is not less than the portion within the parcel ofland allocated by her father, the deceased herein during his lifetime. 2. THAT this Honorable court is hereby pleased to vest the estate property in theheirs/Beneficiaries herein in their respective shares. 3. THAT this Honourable Court is hereby pleased to appoint **YAHYA OMARI YUSUF of ID/NO. 31801679 & FATUMA OMAR YUSUF of ID/NO. 27625652 as administrators** of the Estate of the Deceased herein. 4. That the County Land Registrar, Kwale, to transmit the Estate properties through **YAHYA OMARI YUSUF of ID/NO. 31801679, FATUMA OAMAR YUSUF of ID/NO. 27625652 & MWANAMISI OMARI NROPIA of ID/NO. 8405422.** 5. THAT the Honorable court is hereby pleased to grant the Administrators leave to transferif necessary the properties to the beneficiaries and/or nominees. 6. THAT the Honorable court is hereby pleased to grant leave to the Administrators to selland/or transfer the properties to any third party and to execute all documents to effect such sale and/or transfer. These are orders of the court. **Dated, signed and delivered in the open court on this 30th Day of July, 2026.** **HON. HABIB SALIM VUMBI** **SENIOR PRINCIPAL KADHI** **Delivered in the open court in the presence of the following: -** **Mr. Shaffi Mwahima …. Court Assistant** **Petitioner …………………………………………………………** SIGNED BY/FOR: | | | --- | | **★ THE JUDICIARY OF KENYA ★** **HON.HABIB SALIM VUMBI(SPK)** Kwale Kadhi Court Kadhi Court Date: 2026-07-30 12:51:18 |