[2013] KEKC 2 (KLR)
The court found that the requirements under the Law of Succession Act and substantive Islamic law of inheritance had been met. The applicant, Fatuma Salim, was entitled to be appointed as administrator of the estate due to the respondent's incapacity and the consent of all heirs. The court identified the rightful...
Source-derived case information.
- Citation
- [2013] KEKC 2 (KLR)
- Parties
- Applicant: Fatuma Salim; Respondent: Ali Hussein Mursal
- Court
- Kadhis Courts
- Court Station
- Kadhis Court at Nairobi (Kibera Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 15 of 2013
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- Application granted; Fatuma Salim appointed administrator; estate to be distributed per Islamic law.
- Legal Topics
- Islamic Inheritance, Succession of Estates, Appointment of Administrator
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fatuma Salim
Applicant
Ali Hussein Mursal
Respondent
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether Fatuma Salim should be appointed as administrator of the estate of Mwajuma Njeri Hussein.
- 2 Who are the rightful heirs to the estate of Mwajuma Njeri Hussein under Islamic law.
- 3 How the estate of the deceased should be distributed in accordance with Islamic Shariah.
Ratio Decidendi
The court found that the requirements under the Law of Succession Act and substantive Islamic law of inheritance had been met. The applicant, Fatuma Salim, was entitled to be appointed as administrator of the estate due to the respondent's incapacity and the consent of all heirs. The court identified the rightful heirs as Ali Hussein Mursal and the children of the late Ratib Hussein Mursal. The estate is to be distributed strictly in accordance with Islamic law, specifically the Mawarith provisions in the Qur'an, with shares allocated as per the prescribed fractions for sons and daughters. The actual distribution awaits property valuation, but the entitlement of each heir is established...
Court Disposition
Application granted; Fatuma Salim appointed administrator; estate to be distributed per Islamic law.
Orders
- Fatuma Salim is appointed as administrator and personal representative of the estate of Mwajuma Njeri Hussein (deceased).
- The estate of Mwajuma Njeri Hussein shall be distributed in accordance with Islamic law of inheritance (Mawarith).
Full Case Text
Judgment text and source record
76 paragraphs
REPUBLIC OF KENYA
IN THE KADHI'S COURT AT KIBERA
CIVIL SUIT NO. 15 OF 2013
IN THE MATTER OF THE ESTATE OF MWAJUMA NJERI
HUSSEIN (DECEASED)
FATUMA SALIM ….............................................PLAINTIFF/APPLICANT
-VERSUS-
ALI HUSSEIN MURSAL............................DEFENDANT/RESPONDENT
J U G D E M E N T
By an Originating Summons, dated 29th October, 2013 the Applicant namely:
i. Fatuma Salim, wife to Ali Hussein (herein after 'the Respondent” - their marriage certificate was annexed to the Originating Summons filed by the Applicant and veracity thereof is not objected by both party and the Applicant is a daughter to inlaw of Mwajuma Njeri Hussein (the deceased), seeking for the following orders:-
1) THAT Mwajuma Njeri, Hussein (deceased) died a Muslim on 2nd August, 1993 and was survived by
Ali Hussein Mursal (son)
Ratib Hussein Mursal (son) (deceased)
2) THAT the above mentioned be declared as the rightful legal heir of the deceased.
3) THAT this Honourable court be pleased to distribute the estate of the deceased in accordance with Islamic Shariah.
4) THAT Fatuma Salim be appointed as an Administrator and or/personal representative to the Estate of Mwajuma Njeri Hussein (deceased) pending distribution of the the estate.
The Originating summons was supported by the Affidavit of Fatuma Salim, applicant according to the affidavit at Para 4, that the deceased was survived by the following:-
Name Status
Ali Hussein Mursal - Son
Ratib Hussein Mursal - Son (Deceased)
And that they were the only children of the late Mwajuma Njeri Hussein.
At the time of Mwajuma Njeri's death she left the following unencumbered and available properties as particularized on par 5 of the affidavit.
(a) L.R No. 10 (formerly known as Kericho unsurveyed plot45) – Swahili Village.
(b) L.R No. 28 Kericho – unsurveyed – Swahili Village.
The applicant is related to the deceased by virtue of being her daughter in law.
The applicant claim is based on the fact that the Respondent is bedridden and is in a vegetative state.
The Respondent (Ali Hussein Mursal) filed a replying affidavit and stated as follows in Para 3 and 4 respectively thereof;
“THAT I have no objections for my wife Fatuma Salim to be one of the administrators of the estate of my late mother Mwajuma Njeri Hussein”.
“THAT I do support the application by my wife to be made an administrator and a personal representative of the estate of Mwajuma Njeri Hussein (deceased)".
The Respondent decision is purely based on his current health status.
In court during the hearing of the O.S one Abdul Ratib Hussein (son to Ratib Hussein deceased) as a heir speaking on behalf of her two (2) other sister had no objection and supported the application made by the applicant.
I have considered the oral evidence adduced, as well as the written submission by both party.
I am therefore satisfied that the basic requirement under the law of successions act (cap 160) and substantive Islamic Law of Inheritance has been met.
For the above reasons the application prayed for, is granted.
I also do find that the deceased was survived by the following;
1) Ali Hussein Mursal - Son
2) Ratib Hussein Mursal (Deceased) - Son
And Ratib Hussein was survived by the following:
1) Abdul Ratib Hussein Mursal - Son
2) Ali Ratib Hussein Mursal - Son
3) Leila Ratib Hussein Mursal - Daughter
4) Nila Ratib Hussein Mursal - Daughter
By virtue of Mawarith (Inheritance) verses 11, 12 and 17 of Surah an – nisaa they are accordingly entitled to a lawful share of the estate of the deceased.
The distribution thereof shall be done in accordance with the Islamic Law of Inheritance and as follows:-
LEGAL HEIRS TYPE % ACTUAL AMOUNT
TOTAL INHERITANCE
1. ALI HUSSEIN MURSAL
2. ABDUL RATIB HUSSEIN
3. ALI RATIB HUSSEIN
4. LEILA RATIB HUSSEIN
5. NILA RATIB HUSSEIN
6. MWAJUMA RATIB HUSSEIN PRIMARY HEIR
PRIMARY HEIR
PRIMARY HEIR
PRIMARY HEIR
PRIMARY HEIR 100%
50%
50 %
12. 5%
12. 5% _____
_____
_____
______
______
TOTAL DISTRIBUTION
100. 00% _______
Residue - 0. 00% -
I shall however not make any order as to actual amount in regard to the Inheritance share pending valuation.
Dated and delivered at Nairobi this 8th day of November, 2013
HON. A. I. Hussein (Mr)
KADHI – KIBERAL LAW COURTS
Coram: Before Hon. A. I. Hussein
C/clerk – Koitamet
Applicant - Present
Respondent – Absent