[2015] KEKC 49 (KLR)
The court determined that only the half share in land parcel Kwale/Kinondo Chale/131 was proven to be part of the deceased's estate, as no evidence was provided for the other claimed properties. Applying Qur'anic succession rules, the mother was entitled to one sixth of the estate due to the presence of siblings,...
Source-derived case information.
- Citation
- [2015] KEKC 49 (KLR)
- Parties
- Applicant: Said Shambi; Respondent: Mishi Rashid Nkuchengwa; Respondent: Mwanasha Ali Mwamajeni; Respondent: Bakari Rashid Mbaloh; Respondent: Rashid Bakari Shambi
- Court
- Kadhis Courts
- Court Station
- Kadhis Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 242 of 2014
- Procedural Posture
- Succession Cause / Judgment
- Outcome
- Estate vested absolutely in the named heirs; transmission to be effected by Land Registrar.
- Judges
- AH Athman
- Legal Topics
- Muslim Succession, Distribution of Estate, Determination of Heirs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Said Shambi
Applicant
Mishi Rashid Nkuchengwa
Respondent
Mwanasha Ali Mwamajeni
Respondent
Bakari Rashid Mbaloh
Respondent
Rashid Bakari Shambi
Respondent
Procedural Posture
Succession Cause / Judgment
Legal Issues
- 1 Whether the deceased left a valid estate for distribution under Islamic law.
- 2 Who are the rightful heirs to the estate of Masud Said Shambi.
- 3 What are the respective shares of the heirs under the Qur'anic provisions.
Ratio Decidendi
The court determined that only the half share in land parcel Kwale/Kinondo Chale/131 was proven to be part of the deceased's estate, as no evidence was provided for the other claimed properties. Applying Qur'anic succession rules, the mother was entitled to one sixth of the estate due to the presence of siblings, and the uterine siblings were entitled to one third collectively, to be shared equally. With no other heirs, the residue of the estate was redistributed among the mother and siblings in the same proportions under the radd principle. The court vested the estate absolutely in the named heirs and ordered the Land Registrar to effect transmission accordingly.
Court Disposition
Estate vested absolutely in the named heirs; transmission to be effected by Land Registrar.
Orders
- The estate is vested in the heirs absolutely as per the determined shares.
- Land Registrar to effect transmission of estate to heirs accordingly.
Full Case Text
Judgment text and source record
27 paragraphs
In re Estate of Masud Said Shambi (Deceased) (Succession Cause 242 of 2014) [2015] KEKC 49 (KLR) (26 March 2015) (Judgment)
In re the Estate of Masud Said Shambi (Deceased) [2015] eKLR
Neutral citation: [2015] KEKC 49 (KLR)
Republic of Kenya
In the Kadhis Court at Mombasa
Succession Cause 242 of 2014
AH Athman, SPK
March 26, 2015
In the matter of
Said Shambi
Petitioner
Judgment
1. This is an uncontested succession matter. The petitioner claims the late Masud Said Shambi had no children and was survived by his mother and siblings, that he left a house on Plot No 7055/II/ MN, parcels of land Plot Nos Kwale / Kinondo Chae / 131, 4553/16 Mtopanga and a bank account with Barclays Bank of Kenya ltd.
2. He prays for orders that :1. Determination of heirs2. Determination of estate3. Distribution of estate to heirs4. Any other relief the court deems just to grant.
3. The late Masudi Said Shambi died on March 1, 2013 in Germany and was buried in Mwabungo, Kwale county - Kenya.
4. The issues for determination in this matter are:1. The estate2. Heirs and their respective shares3. Distribution
Estate 5. I have perused the ownership documents of the estate property. Only the title for the parcel of land Kwale/ Kinondo Chale/ 131 was produced. It is registered in the names of Irmgard Helga Rickel and Masud Said Shambi. The half share of the late Masud Said Shambi in this property is part of his estate.
6. The petitioner contends the deceased had a Barclays bank of Kenya ltd Nkrumah rd branch account, they used to go together to make withdrawals. If available it would form part of his estate. The Bank should disclose to court whether or not the deceased had an account with him
7. I cannot find the other properties as part of the estate for lack of proof.
Heirs 8. The mother is entitled to one sixth [1/6] of the estate due to presence of more than sibling under Qur'an 4:11"And for one's parents to each one of them is a sixth of his estate if he left children. But if he had no children and the parents [alone] inherit from him, then for his mother is one third. And if he had brothers [and / or sisters], for his mother is a sixth, after any bequest he [may have] made or debt"
9. The uterine sibling share one third of the estate equally under Qur'an 4: 12"And if a man or woman leaves neither ascendants nor descendants but has a brother or a sister, then for each one of them is a sixth . But if they are more than two, they share a third, after any bequest which was made or debt"
10. Muslim Jurists agree this verse refers to uterine siblings while verse 176 in the same chapter refers to full siblings.
11. After issuance of the Qur'anic shares 3/6 remains, due to lack of any other heir, same is redistributed to them in the same ratio under the radd principle.
12. The legal heirs and their respective shares are:1. Mishi Rashid Nkuchengwa mother 3/92. Mwanasha Ali Mwamajeni uterine sister 2/93. Bakari Rashid Mbaloh uterine brother 2/94. Rashid Bakari Shambi uterine brother 2/9
13. The estate is hereby vested in the heirs absolutely.
14. Land Registrar to effect transmission of estate to heirs accordingly.Orders accordingly.
DATED AND DELIVERED AT MOMBASA ON 26TH MARCH 2015. ABDULHALIM H. ATHMANPRINCIPAL KADHIIn the presence of:Mr. Yusuf K. Abdulrahman, Court assistantMr. Oddiaga for the Petitioner.