[2014] KEHC 1416 (KLR)
The court determined that the central issue is the conflict of laws between Islamic law and the Law of Succession Act regarding the distribution of the deceased's estate. Since two causes have been filed—one seeking distribution under Islamic law and the other under the Law of Succession Act based on a will—the...
Source-derived case information.
- Citation
- [2014] KEHC 1416 (KLR)
- Parties
- MISSING: Cassam Suleiman Sumar (Deceased); Applicant: Mr. Kabiru
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Appeal 653 of 2012
- Procedural Posture
- Succession Cause / Ruling on Preliminary Directions Regarding Conflict of Laws and Consolidation of Causes
- Outcome
- Directions issued for consolidation and determination of applicable law before further proceedings.
- Judges
- DN Musyoka
- Legal Topics
- Conflict of Laws in Succession, Islamic Law Inheritance, Testate Vs Intestate Succession, Probate Objection Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cassam Suleiman Sumar (Deceased)
MISSING
Mr. Kabiru
Applicant
Procedural Posture
Succession Cause / Ruling on Preliminary Directions Regarding Conflict of Laws and Consolidation of Causes
Legal Issues
- 1 Whether the estate of the deceased should be distributed under Islamic law or the Law of Succession Act.
- 2 Whether the will dated 21st May 2008 is valid and disposes only one-third of the estate as per Islamic law.
- 3 Whether two succession causes can proceed concurrently in respect of the same estate.
Ratio Decidendi
The court determined that the central issue is the conflict of laws between Islamic law and the Law of Succession Act regarding the distribution of the deceased's estate. Since two causes have been filed—one seeking distribution under Islamic law and the other under the Law of Succession Act based on a will—the court held that both causes should be handled together for the purpose of resolving which law applies. The court further held that the administration of the estate and any objections to probate cannot proceed until the conflict of laws is resolved. The parties were directed to file submissions on the applicable law, after which the court will set a date for highlighting the...
Court Disposition
Directions issued for consolidation and determination of applicable law before further proceedings.
Orders
- The two causes are to be handled together for the time being for the purpose of addressing the issue of conflict of laws.
- The parties in both causes shall in the next twenty-one (21) days file submissions on the question of which law applies to the estate of the deceased.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. 653 OF 2012
IN THE MATTER OF THE ESTATE OF CASSAM SULEIMAN SUMAR (DECEASED)
RULING
The deceased herein died on 30th October 2008.
Two causes were commenced with respect to his estate. The first in time was Mombasa Kadhi’s Court SC. No. 86 of 2010, which is sought that the estate be distributed in accordance with Islamic law. The second in time is Nairobi HCSC. No. 653 of 2012, where it is alleged that the deceased died testate, and distribution is sought according to his will, allegedly made on 21st May 2008.
In both causes it is stated that the deceased died possessed of property situated at Kwa Shibu Road, Mombasa, and Pangani Road, Nairobi.
As a matter of law two causes ought not to be filed in respect of the same estate, especially with respect to the same property. There should be only one cause.
I note that in the Mombasa cause, it is stated that the estate is to be dealt with under Islamic law. It would appear that under the Nairobi cause it is designed that the same be handled in accordance with the Law of Succession Act. There is no doubt need to resolve the matter as to which of the two systems of law is to apply to the estate. Administration of the estate can only proceed once it is determined which of the two laws apply to the estate.
I note too that in the Nairobi matter objections have been raised to the petition for probate by a person who cross-petitions for appointment as administrator of the estate with the will annexed. No doubt the cross-petitioner does not challenge the validity of the will. The objection cannot be heard until after the conflict of laws matter has been resolved.
It is notorious that under strict Islamic law only a third of a Muslim’s estate is available for distribution by will, while the rest is for division as per the Quranic precepts. An issue therefore arises in this cause as to whether the will made on 21st May 2008 disposes of one-third of the estate of the deceased. There is also the issue whether, if the will disposes of the entire estate, the will is valid to the extent that it does not conform to the Quranic principles, and whether the matter ought to be dealt with under Islamic law or under the Law of Succession Act.
The directions that I am disposed to make are –
That the two causes are to be handled together for the time being for the purpose of addressing the issue of conflict of laws;
That the parties in both causes shall in the next twenty-one (21) days file submissions on the question of which law applies to the estate of the deceased; and
That the matters shall be mentioned thereafter for the purpose of obtaining a date for the highlighting of the submissions.
DATED, SIGNED and DELIVERED at NAIROBI this 28th DAY OF November 2014.
W. MUSYOKA
JUDGE
In the presence of Mr. Kabiru advocate of the petitioner.