[2020] KEKC 4 (KLR)
The court held that under Islamic law, a letter of administration is not a prerequisite for heirs to claim inheritance, as ownership of the estate passes directly to the heirs upon the death of the deceased. The court further found that grandchildren whose parents (the direct heirs) are deceased have the right to...
Source-derived case information.
- Citation
- [2020] KEKC 4 (KLR)
- Parties
- Applicant: Abbas Maliso Kalela; Applicant: Suleiman Kimbio Mwanyambo; Applicant: Hamisi Kalela Nyoka; Respondent: Ramadhan Bakari Itambo
- Court
- Kadhis Courts
- Court Station
- Kadhis Court at Voi
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 01 of 2020
- Procedural Posture
- Succession Cause / Ruling on Preliminary Objection
- Outcome
- Preliminary objection dismissed with costs. Case to proceed to hearing.
- Legal Topics
- Islamic Inheritance, Succession Procedure, Jurisdiction of Kadhis Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abbas Maliso Kalela
Applicant
Suleiman Kimbio Mwanyambo
Applicant
Hamisi Kalela Nyoka
Applicant
Ramadhan Bakari Itambo
Respondent
Procedural Posture
Succession Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether a letter of administration is a prerequisite for heirs to claim inheritance under Islamic law.
- 2 Whether grandchildren of the deceased whose parents are deceased have locus standi to pursue inheritance.
- 3 Whether the Kadhi's Court has jurisdiction to determine disputes over ownership of estate property among heirs.
Ratio Decidendi
The court held that under Islamic law, a letter of administration is not a prerequisite for heirs to claim inheritance, as ownership of the estate passes directly to the heirs upon the death of the deceased. The court further found that grandchildren whose parents (the direct heirs) are deceased have the right to pursue their inheritance rights. On the issue of jurisdiction, the court determined that disputes over ownership of estate property among heirs fall squarely within the jurisdiction of the Kadhi's Court. Consequently, the preliminary objection raised by the respondent/applicant was dismissed for lack of merit.
Court Disposition
Preliminary objection dismissed with costs. Case to proceed to hearing.
Orders
- The preliminary objection is dismissed with costs.
- The case shall proceed to hearing on 26/2/2020.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE KADHIS COURT
AT VOI
SUCCESSION CASE NO. 01 OF 2020
IN THE MATTER OF THE ESTATE OF HAMISI TORE KALELA (DECEASED)
1. ABBAS MALISO KALELA
2. SULEIMAN KIMBIO MWANYAMBO
3. HAMISI KALELA NYOKA................PETITIONERS
VERSUS
1. RAMADHAN BAKARI ITAMBO......RESPONDENT
RULING
The respondent/applicant lodged a preliminary objection to this case dated 28/01/2020 which as heard on 12/02/2020 in which the respondent said his reasons for objection that the plaintiff/respondent have no letter of administration and that they did not get the consent of the remaining heirs especially the 2 daughters of the deceased who are still alive and that this case is about the ownership in nature where this honourable court has no jurisdiction to hear.
In respond the plaintiff/respondent stated that according to the Islamic Sharia the letter of administration is not necessary and that they are grandchildren of the deceased whose parents have passed away whereby they have the right to follow up the vested inheritance on behalf of their parents and on the issue of ownership the plaintiff/respondent averted that the ownership of the said plot is among the heirs concerning inheritance.
Therefore this honourable court do agree that the plaintiff/respondent was the respondent/applicant was not sure whether according to the Islamic law the administration is a pre requirement in the inheritance or not whereby it is not in Islam the ownership directly change from the deceased to their heirs at the death of any deceased. And that since the plaintiff/respondent are the grandchildren of the deceased they have the right to follow the inheritance of their grandfather.
On the issue of ownership, it is among the heirs of the estate or between them and the third party which is not yet confirmed. Therefore, this honourable court has the jurisdiction to resolve the case where there is dispute over the ownership of the estate or part or it.
Therefore the respondent/applicant was not able to ground his application of which this honourable court after careful consideration has been left with no alternative same to dismiss this preliminary objection with cost whereby the case to proceeding for hearing on 26/2/2020 and the respondent/applicant to file his defence or reply to this case.
M.A MAHMOUD- KADHI
14/02/2020
Read before the plaintiff/respondent in the absence of the respondent/applicant at 11. 20am.
M.A MAHMOUD- KADHI
14/02/2020