[2017] KEKC 19 (KLR)
The court found that Leilah Gasana, as the widow of Hassan Mohamed Kassim, was erroneously omitted from the list of beneficiaries and is entitled to a share of the estate. Kassim Hassan Mohamed, having been born before the marriage of his putative parents, is not a legal heir and cannot inherit from Hassan Mohamed...
Source-derived case information.
- Citation
- [2017] KEKC 19 (KLR)
- Parties
- Petitioner: Mohamed Hassan Mohamed; Respondent: Mariam Mohamed; Respondent: Khadija Mohamed; Respondent: Hanifa Mohamed; Respondent: Amir Mohamed; Respondent: Majid Hussein
- Court
- Kadhis Courts
- Court Station
- Kadhis Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 117 of 2007
- Procedural Posture
- Succession Cause / Ruling on Applications for Review and Addition of Heirs
- Outcome
- Applications for review and addition of heir granted. Estate shares recalculated and orders for payment issued.
- Judges
- AH Athman
- Legal Topics
- Succession, Distribution of Estate, Inheritance Rights, Islamic Law of Succession
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohamed Hassan Mohamed
Petitioner
Mariam Mohamed
Respondent
Khadija Mohamed
Respondent
Hanifa Mohamed
Respondent
Amir Mohamed
Respondent
Majid Hussein
Respondent
Procedural Posture
Succession Cause / Ruling on Applications for Review and Addition of Heirs
Legal Issues
- 1 Whether Leilah Gasana, as widow, should be included as a beneficiary of Hassan Mohamed Kassim's estate.
- 2 Whether Kassim Hassan Mohamed, born before the marriage of his putative parents, is a legal heir for inheritance purposes.
- 3 Whether Anwar Hussein Mohamed Kassim should be added as a legal heir of Hussein Mohamed Kassim.
Ratio Decidendi
The court found that Leilah Gasana, as the widow of Hassan Mohamed Kassim, was erroneously omitted from the list of beneficiaries and is entitled to a share of the estate. Kassim Hassan Mohamed, having been born before the marriage of his putative parents, is not a legal heir and cannot inherit from Hassan Mohamed Kassim under Islamic law. The court also found that Anwar Hussein Mohamed Kassim was inadvertently left out as a legal heir of Hussein Mohamed Kassim and should be included. The shares of the estate were recalculated and apportioned accordingly, with specific monetary amounts allocated to each heir. The court ordered that the respondents pay the determined shares to the entitled...
Court Disposition
Applications for review and addition of heir granted. Estate shares recalculated and orders for payment issued.
Orders
- Leilah Gasana is included as a beneficiary and allocated 1/8 share of Hassan Mohamed Kassim's estate.
- Kassim Hassan Mohamed is excluded as a legal heir of Hassan Mohamed Kassim.
Full Case Text
Judgment text and source record
35 paragraphs
In re Estate of Mohamed Kassim (Deceased) (Succession Cause 117 of 2007) [2017] KEKC 19 (KLR) (18 August 2017) (Ruling)
Mohamed Hassan Mohamed v Mariam Mohamed & 4 others [2017] eKLR
Neutral citation: [2017] KEKC 19 (KLR)
Republic of Kenya
In the Kadhis Court at Mombasa
Succession Cause 117 of 2007
AH Athman, PK
August 18, 2017
IN THE ESTATE OF MOHAMED KASSIM (DECEASED)
Between
Mohamed Hassan Mohamed
Petitioner
and
Mariam Mohamed
1st Respondent
Khadija Mohamed
2nd Respondent
Hanifa Mohamed
3rd Respondent
Amir Mohamed
4th Respondent
Majid Hussein
5th Respondent
Ruling
1. This is a ruling on two applications, one dated April 27, 2016 and another dated April 26, 2016.
2. The Notice of Motion application dated April 27, 2016 by the respondents seeks review of the judgment delivered on January 29, 2015 on the grounds that the court found Leilah Gasana was wife to Hassan Mohamed Kassim but failed to include her as a beneficiary and that the court found Kassim Hassan Mohamed as a beneficiary while he was born in 1975, four [4] years before the marriage of his 'parents'.
3. Mr Oddiaga for the petitioner did not oppose the application for review.
4. Upon perusal of the judgment in this matter delivered on 27th April 2016 we did hold and find that Leilah Gasana was married to Hassan Mohamed in 1979. Mohamed Hassan was born in 1981 while Kassim Hassan Mohamed was born in 1975. We had not examined the birth certificate of Kassim Hassan Mohamed. The issue was however framed as an issue for determination. Having been born before the marriage of his putative parents, for purpose of inheritance, Kassim Hassan Mohamed is not a legal heir of Hassan Mohamed Kassim and therefore cannot inherit him. The omission of the widow of Hassan Mohamed in the list of his beneficiaries was an oversight and a clear error on the face of the record. The errors are hereby corrected.
5. The 2/9 [Kes 5,555,555. 56] share of Hassan Mohamed Kassim devolve as follows:1. Leilah Gasana widow 1/8 694,444. 442. Mohamed Hassan Mohamed son 7/8 4,861,111. 12
6. The Notice of Motion application dated April 26, 2016 by the petitioner for orders that one Anwar Hussein Mohamed Kassim be added in the list of heirs of Hussein Mohamed Kassim and his share be apportioned and for orders for sale of the estate properties to pay the shares of the petitioner, Nazir and Anwar Hussein Mohamed Kassim on the grounds that the respondents are not willing to pay their shares and Anwar was inadvertently left out in the final list of heirs although his name appears in the petition.
7. The addition of Anwar as a heir of Hussein Mohamed Kassim was not contested. It is hereby granted. Anwar Hussein Mohamed Hussein is a legal heir and beneficiary of the estate of Hussein Mohamed Hussein. His 2/9 [Kes 5,555,555. 56] share devolve to his heirs as follows:1. Amir Hussein Mohamed son 2/11 1,010,101. 00 [Kes]2. Nazir Hussein Mohamed son '' ''3. Abdulrasul Hussein Mohamed son '' ''4. Anwar Hussein Mohamed son '' ''5. Sharifa Hussein Mohamed daughter 1/11 505. 050. 50 [Kes]6. Mariam Hussein Mohamed daughter '' ''7. Zubeda Hussein Mohamed daughter '' ''
8. In the judgment delivered on January 29, 2015 the court considered the best option for distribution of the estate in this matter. We directed the payment of the shares of the estate of Hassan Mohamed Kassim upon valuation of the estate failure to which, as a final resort, the estate could be sold and proceeds distributed to all heirs. The valuation of the estate was confirmed and adopted and share of each heir determined on March 17, 2016. Each heir is entitled to their respective shares. Mr Hassan for the respondents submitted the respondents are willing to pay but did not know who and how much to pay and the court had not given an ultimatum. They are requesting reasonable time to pay. The petitioner and his mother [the widow of Hassan Mohamed], Nazir and Anwar Hussein Mohamed have demanded their shares.
9. The widow of Hassan Mohamed has given authority for her share to be paid to the petitioner on her behalf. Accordingly the petitioner be paid Kes 5,555,555. 56
10. Nazir and Anwar Hussein Mohamed each be paid Kes 1,010,101. 00. In total the respondents to pay the petitioner, Nazir and Anwar Hussein Mohamed Kes 7,575,757. 56 within six [6] months from date hereof.Orders accordingly.
DATED AND DELIVERED AT MOMBASA ON 18TH AUGUST 2016. ABDULHALIM H. ATHMANPRINCIPAL KADHIIn the presence of :Mr Yusuf K. Abdulrahman, Court AssistantMr Oddiaga for petitionerMr Hassan for Respondent