https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8273

In re Estate of Osman (Deceased) (Succession Cause 689 of 2011) [2026] KEHC 8273 (KLR) (3 June 2026) (Ruling) Neutral citation: [2026] KEHC 8273 (KLR) Republic of Kenya In the High Court at Nyeri Succession Cause 689 of 2011 DKN Magare, J June 3, 2026 IN THE MATTER OF THE ESTATE OF ABDI AZIZ SHEIKH OSMAN (DECEASED) Between Ahmed Abdiaziz Jama Applicant and Laila Abdi Aziz Jama Respondent Ruling 1.The matter relates to an application for confirmation of grant. The court revoked the grant vide its ruling and issued letter of administration to the two issues of the late Abdi Aziz Sheik Osman (Deceased). He left behind the following:a.Laila Abdi Aziz Jamab.Ahmed Abdiaziz Jama 2.He left behind several parcels of land. Some of the properties are dispiuted. The properties left behind are as follows:a.Nanyuki Block 7/140b.Nanyuki Block 7/48c.E. Bukusu/Kanduyi/2490d.KCB Account Number 0551xxxxxxxx Nanyuki Branch.e.Rent Account 3.Laikipia/Nanyuki Block Municipality Block 3/1098 though listed as belonging to the late Abdi Aziz Sheikh Osman (Deceased), its ownership was shown as belonging to Douglas Kuria. It is not therefore available for distribution in absence of an order determining ownership of the said plot. However once ownership is determined to belong to the deceased, Ahmed Abdiaziz Jama and Laila Abdi Aziz Jama shall share the same equally. 4.The law guiding herein is section 38 of the Law of Succession that provides as follows:Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children. 5.The applicant requested that the succession be carried out according to Islamic law. However in submissions they indicated that they are willing to share equally. In the ruling I made earlier, I found that there are no applications to deal with the question of application of Islamic law. Article 24(4) of the Constitution provides as follows regarding applicability of rights to muslims:The provisions of this Chapter on equality shall be qualified to the extent strictly necessary for the application of Muslim law before the Kadhis’ Courts, to persons who profess the Muslim religion, in matters relating to personal status, marriage, divorce and inheritance. 6.The limitation is only limited to application of Muslim law before the Kadhis’ Courts. The limitation does not apply to the matters before the High Court. Article 170(5) of the Constitution provides as follows:The jurisdiction of a Kadhi's court shall be limited to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion and submit to the jurisdiction of the Kadhis' courts. 7.The applicant did not submit to the jurisdiction of the Kadhis' courts. The court cannot therefore impose the Muslim law on them when they decline to pursue the same before the Kadhi. 8.I therefore direct that the property be shared equally as follows:a.Nanyuki Block 7/140 - Laila Abdi Aziz Jama absolutelyb.Nanyuki Block7/48 - Ahmed Abdiaziz Jama absolutelyc.East Bukusu/Kanduyi/2490 to be shared equally in common by Ahmed Abdiaziz Jama and Laila Abdi Aziz Jamad.KCB Account Number 0551xxxxxxxx Nanyuki Branch. to be shared equally between Ahmed Abdiaziz Jama and Laila Abdi Aziz Jama, upon payment of all rates and outgoings.e.Rent collected up to the date of ruling and available, to be shared equally between Ahmed Abdiaziz Jama and Laila Abdi Aziz Jama.f.The court declines to deal with monies already spent as the court is not a debt collection court. 9.In a nutshell the grant issued to Ahmed Abdiaziz Jama and Laila Abdi Aziz Jama is hereby confirmed as aforesaid. Transmissions be concluded by 3.12.2026. 10.This leaves the issue of costs which are generally discretionary. However, the discretion is not arbitrary. The Court of Appeal in the case of Farah Awad Gullet v CMC Motors Group Limited [2018] KECA 158 (KLR) had this to say:It is our finding that the position in law if that costs are at the discretion of the court seized up of the matter with the usual caveat being that such discretion should be exercised judiciously meaning without caprice or whim and on sound reasoning secondly that a court can only withhold costs either partially or wholly from a successful party for good cause to be shown. 11.The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR), as follows:18.It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation.22.Although there is eminent good sense in the basic rule of costs - that costs follow the event- it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings - a position well illustrated by the considered opinions of this court in other cases. The relevant question in this particular matter must be, whether or not the circumstances merit an award of costs to the applicant. 12.In the circumstances, each party shall bear its own costs. Determination 13.I make the following orders: -a.Nanyuki Block 7/140 - Laila Abdi Aziz Jama absolutely.b.Nanyuki Block7/48 - Ahmed Abdiaziz Jama absolutely.c.East Bukusu/Kanduyi/2490 to be shared equally in common by Ahmed Abdiaziz Jama and Laila Abdi Aziz Jama.d.KCB Account Number 0551xxxxxxxx Nanyuki Branch to be shared equally between Ahmed Abdiaziz Jama and Laila Abdi Aziz Jama, upon payment of all rates and outgoings, from the said account.e.Rent collected up to the date of ruling and available to be shared equally between Ahmed Abdiaziz Jama and Laila Abdi Aziz Jama.f.The court declines to deal with monies already spent as the court is not a debt collection court.g.There is no evidence that Laikipia/Nanyuki Block Municipality Block 3/1098 belonged to the deceased. The parties to pursue the same and once it is recovered to the estate of the late Abdi Aziz Sheik Osman (Deceased), Ahmed Abdiaziz Jama and Laila Abdi Aziz Jama shall share the same equally.h.Each party to bear its own costs.i.The grant be transmitted by 3.12.2026.j.Mention on 26.1.2027 before the Deputy Registrar of this court to confirm transmission.k.The file is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 3RD DAY OF JUNE, 2026.KIZITO MAGAREJUDGERuling delivered through Microsoft Teams Online Platform. In the presence of:-Mr. Okanga for Jama Ahmed.Mr. Yusuf for Laila Jama.Court Assistant – Martin.