[2016] KEKC 35 (KLR)
The court found that the applicant, Momo Hamisi Jagina, is listed as one of the heirs of the estate and, despite the respondent's contestation of her entitlement, she has a prima facie claim as a beneficiary. The respondent's own statements acknowledge her recognition as an heir, albeit with a claim of subsequent...
Source-derived case information.
- Citation
- [2016] KEKC 35 (KLR)
- Parties
- Petitioner: Ali Hamisi Kinganga; Applicant: Momo Hathani Mbarak alias Momo Hamisi Jagina; Respondent: Muhamad Hamisi Jagina
- Court
- Kadhis Courts
- Court Station
- Kadhis Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 236 of 2009
- Procedural Posture
- Succession Cause / Ruling on Application for Substitution of Petitioner
- Outcome
- Application for substitution granted.
- Judges
- AH Athman
- Legal Topics
- Succession, Substitution of Parties, Beneficiary Entitlement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ali Hamisi Kinganga
Petitioner
Momo Hathani Mbarak alias Momo Hamisi Jagina
Applicant
Muhamad Hamisi Jagina
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Substitution of Petitioner
Legal Issues
- 1 Whether the applicant is entitled to be substituted as petitioner in place of the deceased original petitioner.
- 2 Whether the applicant is a beneficiary of the estate and entitled to defend her claim.
Ratio Decidendi
The court found that the applicant, Momo Hamisi Jagina, is listed as one of the heirs of the estate and, despite the respondent's contestation of her entitlement, she has a prima facie claim as a beneficiary. The respondent's own statements acknowledge her recognition as an heir, albeit with a claim of subsequent denouncement by the deceased. The court held that such disputes regarding entitlement should be determined on their merits in the substantive proceedings, not at the stage of substitution. Therefore, the applicant must be allowed to defend her entitlement, and the application for substitution is granted.
Court Disposition
Application for substitution granted.
Orders
- Leave is granted for the substitution of the petitioner with Momo Hathani Mbarak alias Momo Hamisi Jagina.
Full Case Text
Judgment text and source record
24 paragraphs
In re Estate of Khamis Jagina (Deceased) (Succession Cause 236 of 2009) [2016] KEKC 35 (KLR) (5 May 2016) (Ruling)
In re Estate of Khamis Jagina [2016] eKLR
Neutral citation: [2016] KEKC 35 (KLR)
Republic of Kenya
In the Kadhis Court at Mombasa
Succession Cause 236 of 2009
AH Athman, PK
May 5, 2016
IN THE MATTER OF THE ESTATE OF KHAMIS JAGINA (DECEASED)
Between
Ali Hamisi Kinganga
Petitioner
and
Muhamad Hamisi Jagina
Respondent
Ruling
1. This is a Notice of motion dated February 8, 2016 for orders for leave for the substitution of the petitioner with Momo Hathani Mbarak alias Momo Hamisi Jagina.
2. The applicant deponed that the petitioner is her brother and had passed way on August 25, 2015 at Mombasa. Death certificate was annexed to the application and the substitution is necessary to finalize determination of the matter.
3. The respondent opposes the application. He filed grounds of opposition dated March 9, 2016. He states the applicant is not a beneficiary of the estate and not a sister of Ali Hamisi Jagina, the deceased petitioner.
4. The matter was disposed of by way of written submissions. Counsel of parties reiterated their positions in the applications and reply thereto.
5. Momo Hamisi Jagina is listed as one of the heirs of the estate in this matter. In his reply to the petition the respondent at para 3 contested her entitlement to inherit the estate as a legal heir. He claimed the deceased had denounced her. The matter was settled by consent dated August 14, 2013. Parties were silent on the heirs in that consent adopted by court. They agreed on all assets of the estate save for two properties which they were to address later.
6. The applicant is a prima facie beneficiary of the estate. The respondent disputes this fact but his statement alludes she was recognized but later denounced by the deceased. This is all the more reason why she must be allowed to defend her entitlement.
7. The application is granted as prayed. Orders accordingly.
DATED AND DELIVERED AT MOMBASA ON 5TH MAY 2016ABDULHALIM H. ATHMANPRINCIPAL KADHIIn the presence of:Mr. Yusuf K. Abdulrahman, Court AssistantMr. Mazrui for applicantMr. Mwawasi for respondent