[2022] KEHC 11287 (KLR)

Baazan v Salim (Civil Appeal 23 of 2017) [2022] KEHC 11287 (KLR) (15 July 2022) (Judgment)

Neutral citation: [2022] KEHC 11287 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal 23 of 2017

JN Onyiego, J

July 15, 2022

Between

Munira Ahmed Baazan

Appellant

and

Gamar Omar Salim

Respondent

(Being an appeal from the Judgment and decree of Mombasa Hon.kadhi Abdulhalim Athman delivered on 4th June 2015 in kadhi’s succession case number 89 of 2012)

Judgment

1. The deceased herein Omari Salimu Saidi who is said to have died on 9th May, 2011 was survived by two wives and children; the first wife Fatuma Ali with whom he had divorced before he died had the following childrena.Garmarb.Majidc.Rehemad.Munirae.Regea

2. From the second wife Munira Ahmed Baazan, they were blessed with two children namely;a.Salimb.Jamal

3. Upon his death, Garmar one of the children petitioned the Kadhi’s court Mombasa vide Succession cause No 89/2012 seeking determination of the estate of the late Omari Salimu, heirs (beneficiaries) to the estate and beneficiaries’ respective shares.

4. According to the petition filed on 5th June, 2016, Munira Ahmed Baazan the second wife to the deceased was named as the respondent while Garmar was the petitioner. Listed as comprising the estate was Plot No. 41 situate at Taita Mwatate with a house erected thereon. The deceased was said not to have left any liabilities. It was alleged that Munira the second wife had taken over everything concerning the estate to the exclusion of other beneficiaries.

5. In response, Munira filed a statement of defence dated 12th June, 2012 admitting the list of beneficiaries listed by the petitioner. She denied the existence of plot No 41 and that she had locked out other beneficiaries from the estate. She termed the suit as bad in law an amounts to an abuse of the court process.

6. During the hearing, the petitioner reiterated the position that the deceased left one property (Plot 41 Mwatate ) and that her step mother (second wife ) was collecting and spending rental income from two shops, one Kiosk and some 13 rooms erected on the said property to the exclusion of other beneficiaries. She denied the allegation that her father had given as a gift the suit property (estate) to Munira exclusively. It was her testimony that the estate should be shared out to all beneficiaries

7. On her part, Munira Ahmed told the court that she was only aware of Plot No 42 Mwatate and not Plot No 41. She claimed that Plot 42 was gifted to her by the deceased (husband) before he died and therefore does not form part of the estate. That prior to her being gifted, she used to stay in plot 39 which the petitioner took possession of after giving her notice to vacate.

8. On cross examination, she stated that she had no claim over plot No 39. The defendant called Muravikumbi Shotosho and Jamal Omar as witnesses who simply corroborated her testimony.

9. After considering parties’ evidence and submissions, the honorable Kadhi delivered his judgment on 4th June, 2015 thus declaring that the only property comprising the estate was plot No 42. The court recognized the heirs to be;a.Majid -sonb.Garmar-daughterc.Rehema -daughterd.Munira -daughtere.Regea daughterf.Munira widowg.Jamal- sonh.Salim -son

10. He went further to distribute the estate as follows;a.The widows 12. 5%b.Each daughter son 8. 15%c.Each son 17. 5%

11. The court also ordered the respondent to file accounts of the proceeds of the estate property for consideration during the final distribution and that the estate be valued.

12. Aggrieved by the said decision, Munira filed a memorandum of appeal dated 11th June, 2015 citing 7 grounds and later a supplementary memorandum of appeal citing 10 grounds of appeal as follows;a.That learned principal Kadhi erred in law and fact in not realizing and appreciating that the Kahdi’s court had no jurisdiction to entertain the matter.b.That learned principal Kadhi erred in law and fact in not deciding the issue of the validity of the inter-vivos gift of the house to the appellant herein by the deceased.c.That learned Kadhi erred in law and in fact by being openly biased against the appellant and ignoring evidence adduced on her behalf and setting out specifically to prove and or justify the respondent’s case.d.That learned trial kadhi erred in law and fact in failing to appreciate that the property was matrimonial property to which the matrimonial property Act applied and that it was to be treated as such.e.That the learned kadhi erred in law and fact in failing to take into account and disregarding evidence adduced to show that the appellant herein partially built the house and extended it and that if at all the house formed part of the estate of the deceased then it was only the small structure left by the deceased at the time of his death and not the entire housef.That the learned trial kadhi erred in giving contradictory findings of fact in relation to the inter -vivos gift of the house to the appellant herein.g.That learned principal kadhi erred in law and fact in brushing aside and neglecting to decide the central issue as to whether the deceased left any other property apart from the house at Mwatate.h.That the learned principal kadhi erred in law and fact in disregarding clear evidence in proof of the fact that the respondent herein initiated the action taken by their late father in having to divide the houses between his two wives, and households.i.That learned principle kadhi erred in law and fact in giving totally contradictory findings of fact not supported by the evidence before the court and totally at variance therewith.j.That the learned kadhi erred in fact and law in giving a partial and biased verdict with the sole aim of finding for the respondent herein.

13. When the matter came up for directions, counsel representing their respective parties agreed to file written submissions to dispose of the application.

Applicant’s submissions. 14. Through the law firm of Ilham Hisham, the appellant basically disagreed with the finding of the Honourable Kadhi. Learned counsel submitted that the deceased had gifted his property being plot No 42 to the appellant hence the court erred in disregarding the same. It was counsel’s contention that the deceased handed over the subject property ( plot N0. 42) to the applicant physically hence a complete transfer of a gift Intervivos. In support of this argument, counsel relied on the holding in the case of In re- estate of the late Gideon Manthi Nzioka (deceased2015) e KLR.

15. Further, learned counsel submitted that the subject property constitute the applicant’s matrimonial house which fact the Hon. Kadhi ignored. Learned counsel referred the court to section 2 of the matrimonial property Act on the definition on what constitutes matrimonial property and also section 6 (3) of the same Act which provides that ownership of matrimonial property vests in the spouse according to the contribution of either spouse towards its acquisition and shall be divided between spouses if they divorce or their marriage is otherwise dissolved. It was further submitted that the court did not consider plot No 39 on which the respondent and her siblings reside after chasing away the appellant to plot No 42.

Respondent’s submissions. 16. The firm of Khalid Salim advocates appearing for the respondents filed their submissions on 9th July, 2021. Regarding the question whether the Kadhi had jurisdiction to determine a matter touching on matrimonial property, counsel submitted that the issue before court is succession and distribution of the estate and not a dispute regarding matrimonial property hence the Kadhi had jurisdiction.

17. Concerning the property comprising the estate, counsel submitted that there was proof by way of an allotment letter that plot No 42 was allocated to the deceased hence the only known property constituting the estate. Regarding the allegation by the applicant that she did much improvement on the structure left by the deceased on plot No 42, counsel contended that there was no proof of such development.

18. Concerning the aspect that the applicant was gifted the property through an oral will, counsel opined that, Islamic sharia law only recognize a Muslim testator to bequeath 1/3 of his estate through a will and that he cannot completely disentitle the rest of the heirs.

Determination 19. This is a first appeal. As the first appellate court, it is incumbent upon this court to reconsider, re- examine and re -evaluate the lower court’s evidence a fresh so as to arrive at an independent determination and conclusion without losing sight of the fact that the trial court had the advantage of listening to and assessing the general demeanor of the witnesses. See Selle and another Vs Associated Motor Boat Co Ltd and other( 1968) 123 where the court held that;“This court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ...is by way of retrial and the principle upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate itself and draw its own conclusion though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect”

20. Having considered the record of appeal which appears incompetent and with various gaps in the lower court proceedings, grounds of appeal and counsel’s submissions, issues that crystalize for determination are;a.Whether the estate herein constitutes only plot No 42b.Whether plot No 42 was gifted to the respondent to the exclusion of other beneficiariesc.Whether there were any improvements made by the appellant to the premises (house) erected on plot No 42d.If the answer in respect of issue No 3 above is in the affirmative, whether the appellant is entitled to any compensation.

21. From the pleadings and evidence on record, there is no dispute on the identity of the heirs. For avoidance of doubt, the undisputed heirs to the estate are;a.First housea.Majidb.Garmarc.Rehemad.Munirae.Regeab.Second housea.Munira Ahmedb.Jamalc.Salim

22. The identity of the heirs entitled to inherit the estate having been agreed upon, the next question is, did the deceased leave any property capable of inheritance. According to the petition, the deceased left plot No 41 Taita Mwatate. This was however later clarified and confirmed to be plot No 42 Taita Mwatate as per the allotment letter issued to the deceased and not plot No 41.

23. It was the respondent’s (petitioner’s) position and evidence that the only known property belonging to the deceased was plot No 42 and therefore available for division in accordance to Islamic law. On her part, the appellant contended that, plot No 42 was gifted to her by her husband and that she has since done great improvement on the property without the first family’s contribution. She claimed that the first family was given plot No 39 which property was not disclosed in the petition application.

24. The court is therefore left with the question whether plot 39 does constitute part of the estate. According to the honorable Kadhi, there was no evidence tendered to prove that plot No 39 did exist and that it belonged to the deceased. It is trite that the role of a probate court is to distribute ascertainable estate of a deceased person.

25. It is incumbent upon the party claiming that a certain property belongs to the estate to prove that the deceased indeed owned the alleged property. According to the oral evidence of the appellant, she stayed in plot No 39 up to 1990 when the respondent wrote a letter directing her to vacate from the house which she (respondent) claimed to be hers. That she left as directed and occupied plot No 42 comprising of 2 rooms and 2 shops but which she later improved and expanded into six rooms. On cross examination, she confirmed that there was nothing in writing made by the deceased when gifting her plot No 42. During cross examination, the respondent claimed that she was staying in her mother’s house given to her by her father hence her property.

26. From the evidence on record, I do not find any evidence that plot No 39 was owned by the deceased. I do agree with the honorable Kadhi that plot No 39 which is not ascertainable did not belong to the deceased. However, should there emerge evidence in future that the plot did exist in the deceased’s name or belonged to the deceased, it shall be included or distributed accordingly through review of judgment.

27. Having held as above, I am left with plot 42 which bears the name of the deceased as the owner. The only point of contention is that it was gifted to the appellant as the second wife. That the same was gifted through a verbal will. However, this claim only emerged during the hearing. It was not pleaded anywhere in the pleadings. None of the witnesses ever saw a written or heard a verbal will executed by the deceased in favour of the appellant.

28. Assuming for a moment that there was an oral or written will, does it meet the threshold of what constitutes a will under Islamic law. Both parties profess Islamic religion which then places them squares under the jurisdiction of the Kadhi’s court under Article 170 of the Constitution.

29. In the case of Saifudean Mohamedali Noorbhai vs Shehnaz Abdehussein Adamji ( 2011) e KLR the court stated that;“The limit on a Muslim’s testamentary freedom , up to one third of one’s estate, is seen in Islam as a means to ensuring balance between a Muslim’s freedom in this regard and responsibility to his or her heirs. Deriving sanction from a prophetic tradition, it reflects indications in the noble scripture that a muslim may not “so dispose of his property by will as to leave his heirs destitute” ( Mulla .Ch.IX wills .P.141)

30. Similar position was held in the case of Khadija Gubo Darche & 2 others vs Abdikadhir Gubo Darche & 2 others ( 2019) e KLR where the court held that a will cannot disinherit the rest of the heirs. Besides being an occupant in plot No 42, there is nothing to show that, the appellant was exclusively gifted that plot by the deceased. The respondent claimed that her mother who got divorced was given property by her father and that that is the property they are occupying. Having held that there is only one property left by the deceased and that there is no will left by the deceased gifting the appellant I am left with one conclusion to make and that is; plot No 42 is part of the estate of the deceased.

31. With the above finding that the only estate let by the deceased was plot No 42, the court is left with the question where the appellant is entitled to retain the house alone as her matrimonial property under section 7 of the matrimonial property Act. I do not think the aspect of matrimonial property Act will count otherwise the clear provisions on distribution of the estate of a deceased Muslim person will be eroded

32. In a nut shell, and in view of my finding that the deceased did not make any will oral or otherwise gifting the appellant his only property, it will be unfair to exclude the rest of the heirs from inheriting their father’s estate. Accordingly, I do not find any good ground upon which to interfere with the Honorable Kahdi’s decision. To that extent, the appeal herein is dismissed with no order as to costs. The matter to proceed with execution and implementation of the distribution before the Kadhi’s court.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBAS THIS 15TH DAY OF JULY, 2022J. N. ONYIEGOJUDGE