https://new.kenyalaw.org/akn/ke/judgment/kekc/2026/11

 REPUBLIC OF KENYA IN THE KADHI COURT OF KENYA AT KWALE COUNTY COURT NAME: KWALE KADHI COURT CASE NUMBER: KCSUCC/E116/2026 IN THE MATTER OF ESTATE OF HAMISI OMARI MWANYUNGU ALIAS HAMISI OMARI MWASHANDA, MWANAMISI OMARI MWANYUNGU, MASIKA OMARI MWANYUNGU. PETITIONER; SHEBANI OMARI FUNGIZA 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 persons filed this Succession Petition on the 10th June, 2026. The petition was accompanied by a verifying affidavit, Petitioner’s statement, and Petitioner’s list of documents attaching death certificate of the deceased for the 1st Deceased person, letters both dated 19th June, 2026 issued by the County Civil Registrar confirming the death of the 2nd & 3rd Deceased persons, introduction letter from the area chief dated 25th June, 2026, copy of certificate of official search dated 14th May, 2026, family consent dated 26th June, 2026, further affidavit and copies of identity cards. The petitioners herein prayed the court the following prayers: 1) A declaration that the Petitioner together with his siblings are the rightful heirs and administrator of the deceased property. 1. Distribution of the deceased property. 2. Any other relief as this court deems fit to grant. That the 1st Deceased person **HAMISI OMARI MWANYUNGU Alias HAMISI OMARI MWASHANDA** passed away a Muslim and intestate on the 17th day of July, 2023 at his residence in Kiteje, Ng’ombeni Location as it appears in the certificate of death. That the 2nd Deceased person **MWANAMISI OMARI MWANYUNGU** passed away a Muslim and intestate on the 30th September, 1998 at her residence in Mkambi village, Kiteje Sub-Location, Ng’ombeni Location within Matuga Sub-County as it appears in the letter dated 19th June, 2026 issued by the County Civil Registrar. That the 3rd Deceased person **MASIKA OMARI MWANYUNGU** passed away a Muslim and intestate on the 12th August, 1982 at her residence in Mkumbi village, Kiteje sSSublocation, Ng’ombeni Location within Matuga Sub-county as it appears in the letter dated 19th June, 2026 issued by the County Civil Registrar in place of Certificate of death. The Petitioner pleaded that the deceased persons during their lifetime acquired the parcel of land known as KWALE/NG’OMBENI/728 and the same was registered under their names as proprietors in common in equal shares. The Petitioner stated that the property was not administered until the death of the last proprietor. On the face of the petition specifically at Para 5 the petitioner herein pleaded that the Deceased persons upon their death was survived by the following: 1. Shaban Omari Fungiza …. Brother 2. Mwinyi Omari Mwawanzinda …. Brother 3. Mwanakombo Omari Chiphunga …. Sister 4. Fatuma Omari Mwanjama …. Sister The Petitioner herein was heard on the 20th July, 2026. The Petitioner stated exactly what was pleaded in the Petition. He stated that the three (3) deceased persons are his siblings. He further stated that the deceased persons were no blessed with any issue, they were neither had ascendants nor descendants, hence survived by their siblings as reproduced in Para 5 of the petition. He contends that the distribution be effected in equal shares. Pw1 was Mwinyi Omari Mwawanzinda who happens to be a sibling to the deceased persons. He stated that the petitioner herein is his brother. He contends that the statement of the petitioner is accurate and true and he associates himself with. Pw2 was Mwanakombo Omari Chiphunga who happens to be a sibling to the deceased persons. She stated that the 1st Deceased Person Hamisi Omari Mwanyungu Alias Hamisi Omari Mwashanda was blessed with three (3) issues. She further stated that the said children are currently with their mother, however, she doesn’t know their whereabouts. She contends that the 2nd & 3rd Deceased persons were not blessed with any issue. She avers that the distribution of the Estate property be in equal shares amongst the heirs. Pw3 was Fatuma Omari Mwanjama who happens to be a sibling to the Deceased persons herein. She stated that the three deceased persons upon their death were not survived by either ascendants nor descendants. She avers that the distribution of the Estate property be effected in equal shares. 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 considered the pleadings and the oral submission and this Honorable court frames the following as issues for determination: a) What constitute the Deceased estate 1. Who are the rightful heirs of the Estate of the Deceased? 2. Mode of Distribution In regard to the issue of what constitute the estate of the estate of the deceased, based on the pleadings specifically para 4 of the petition together with the documentary evidence specifically the certificate of Official search dated 14th May, 2026 and the evidence adduced in court, it is clear that the deceased persons during their lifetime co-owned a parcel of land known as **KWALE/NG’OMBENI/728** in equal shares. In determining the issue this Honourable court is hereby pleased to declare that the parcel of land known as **KWALE/NG’OMBENI/728** forms part of the Estate of the Deceased persons herein. In regard to the issue of who are the rightful heirs of the deceased, from the pleadings and the uncontroverted evidence adduced in court, the evidence indicates that the deceased persons upon their death weren’t survived by either ascendants or descendants and that their siblings were the only ones surviving them. ***“They ask you for a legal verdict. Say: “Allah directs (thus) about Al-Kalalah (those who leave neither descendants nor ascendants as heirs). If it is a man that dies leaving a sister, but no child, she shall have half the inheritance. If (such deceased was) a woman, who left no child, her brother takes her inheritance. If they are two sisters, they shall have two-thirds of the inheritance; if they are brothers and sisters, the male will have twice the share of the female. (Thus) does Allah make clear to you (His Law) lest you go astray. And Allah is the All-knower of everything”.*** ***Q: 4:176*** The above verse does specify that in the event a person dies leaving neither descendant nor ascendants as heirs, but leaves his/her siblings as heirs, they inherit the Estate in a manner that a share of a brother is twice the share of a sister. Based on the foregoing, the four (4) siblings; two (2) brothers and two (2) sisters are the rightful heirs of the deceased persons herein. In determining their shares of inheritance, since they are sibling’s male and female, they inherit the Estate in a manner that a share of a brother is double the share of his sister. However, during the hearing they proposed and agreed that the distribution be effected in equal shares. Therefore, this Honourable court adopts the same as mode of distribution. In nutshell this Honorable court in determining this matter holds the following terms: 1) That the parcel of land known as **KWALE/NG’OMBENI/728** forms part of the estate of the deceased persons herein. 2) That the rightful heirs of the deceased and their shares are as follows: a) Shaban Omari Fungiza, brother is entitled to 1/4 1. Mwinyi Omari Mwawanzinda, brother is entitled to 1/4 2. Mwanakombo Omari Chiphunga, sister is entitled to 1/4 3. Fatuma Omari Mwanjama, sister is entitled to 1/4 4. That this Honorable court is hereby pleased to vest the estate property in the heirs intheir respective shares. 5. That the County Land Registrar, Kwale is hereby directed to transmit the Estate propertythrough the heirs in their respective shares. 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 10:49:14 |