[2015] KEKC 22 (KLR)
The court found that the only asset of the estate is Mombasa/Block XLIV/76. All primary heirs of the deceased are themselves deceased, so the doctrine of Al Munasakha applies, and the shares devolve to their respective heirs. The court determined the full list of heirs and their precise shares in accordance with...
Source-derived case information.
- Citation
- [2015] KEKC 22 (KLR)
- Parties
- Applicant: Awadh Ahmed Jezan; Applicant: Said Hemed Said; Applicant: Aboud Abdulrahman Aboud; Respondent: Salim Mohamed Salim
- Court
- Kadhis Courts
- Court Station
- Kadhis Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 100 of 2014
- Procedural Posture
- Succession Cause / Judgment
- Outcome
- Estate vested in heirs in shares indicated; trustees appointed; respondent given first opportunity to buy property; if sold, proceeds to be distributed as per shares.
- Judges
- AH Athman
- Legal Topics
- Islamic Succession, Distribution of Estate, Identification of Heirs, Trusteeship, Sale of Estate Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Awadh Ahmed Jezan
Applicant
Said Hemed Said
Applicant
Aboud Abdulrahman Aboud
Applicant
Salim Mohamed Salim
Respondent
Procedural Posture
Succession Cause / Judgment
Legal Issues
- 1 What constitutes the estate of the deceased.
- 2 Who are the legal heirs and what are their respective shares under Islamic law.
- 3 How should the estate be distributed among the heirs.
Ratio Decidendi
The court found that the only asset of the estate is Mombasa/Block XLIV/76. All primary heirs of the deceased are themselves deceased, so the doctrine of Al Munasakha applies, and the shares devolve to their respective heirs. The court determined the full list of heirs and their precise shares in accordance with Islamic law. Most beneficiaries prefer monetary distribution, but the respondent, who resides in the property, opposes sale. The court gives the respondent first opportunity to buy out the other heirs at a value to be ascertained. If not, the property may be sold and proceeds distributed by the appointed trustees (petitioners and respondent), with sale agreements and receipts to...
Court Disposition
Estate vested in heirs in shares indicated; trustees appointed; respondent given first opportunity to buy property; if sold, proceeds to be distributed as per shares.
Orders
- The estate property Mombasa/Block XLIV/76 is vested in the heirs in the shares indicated.
- The petitioners and respondent are appointed as trustees of the estate.
Full Case Text
Judgment text and source record
33 paragraphs
In re Estate of Rehema Binti Said Msonek (Deceased) (Succession Cause 100 of 2014) [2015] KEKC 22 (KLR) (23 April 2015) (Judgment)
In re Estate of Rehema Binti Said Msonek (Deceased) [2015] eKLR
Neutral citation: [2015] KEKC 22 (KLR)
Republic of Kenya
In the Kadhis Court at Mombasa
Succession Cause 100 of 2014
AH Athman, PK
April 23, 2015
IN THE MATTER OF THE ESTATE OF REHEMA BINTI SAID MSONEK (DECEASED)
Between
Awadh Ahmed Jezan
1st Petitioner
Said Hemed Said
2nd Petitioner
Aboud Abdulrahman Aboud
3rd Petitioner
and
Salim Mohamed Salim
Respondent
Judgment
1. The petitioner prays for:1. Determination of heirs and their respective shares according to Islamic law2. An order for leave be granted for sale of property known as Mombasa/ Block XLIV/76 and the three petitioners be appointed as Trustees for purpose of sale, execution of the transfers and distribution of the estate.3. An order that the petitioners be allowed to distribute the proceeds of the sale of the property of the estate to all heirs in accordance to their entitlement under Islamic Law.4. Any other relief the court deem fit to grant.
2. The petitioners claim the deceased left the property known as Mombasa/ Block XLIV/76 situated at Mombasa island, that she was survived by three daughters and one son who are now all deceased but they were survived by their respective heirs entitled to inherit the estate.
3. The respondent through his replying affidavit dated 8th December 2014 does not object to distribution of the estate but contend because he inherit through his father, he is entitled to two thirds [2/3] of the estate. He deponed that he is not ready to sell his shares in the estate as he lives in the house with his family.
4. The late Rehema Bint Said Msonek died sometimes in 1945.
ISSUES 5. The issues for determination in this matter are:1. What constitutes the estate2. The legal heirs and shares of each heir3. Distribution
Estate 6. There is no dispute that the property known as Mombasa/ Block XLIV/76 constitutes the property of the late Rehema Bint Said Msonek.
Heirs 7. There is no dispute on the heirs. This is a classic case of Al Munasakha, where the all the primary heirs are all deceased, their respective shares devolve to their respective heirs.
8. The heirs of the late Rehema Said Msonek are:1. Salma Salim daughter2. Barke Salim daughter3. Esha Salim daughter4. Mohamed Salim sonThe share of each daughter =1/5 20%The share of the son = 2/5 40%The [1/5] share of Salma Salim devolve to her only child Awadh Jezan.The [1/5] share of Barke Salim devolve to her heirs as follows:1. Said Hemed Said son 2/132. Swaleh Hemed Said son 2/13 deceased3. Fatuma Hemed Said son 1/134. Mohamed Hemed Said son 2/135. Yahya Hemed Said son 2/136. Mbarak Hemed Said son 2/137. Abud Hemed Said son 2/13The [2/13 of 1/5]share of Swaleh Hemed Said devolve to his heirs as follows:1. Abdallah Swaleh Hemed son2. Ahmed Swaleh Hemed son3. Amina Swaleh Hemed daughter4. Said Swaleh Hemed son5. Ali Swaleh Hemed son6. Hashim Swaleh Hemed son7. Khadija Swaleh Hemed daughter8. Maryam Swaleh Hemed daughter9. Hamad Swaleh Hemed son10. Mohamed Swaleh Hemed son11. Aisha Swaleh Hemed daughter12. Rukiya Hanzwani Hemed widowThe widow's share = 18/144The share of each daughter = 7/144The share of each son = 14/144The [1/5] share of Esha Salim devolve to her heirs as follows:1. Fauziya Abdulrahman Aboud daughter 1/82. Gamar Abdulrahman Aboud daughter 1/83. Abudu Abdulrahman Aboud son 2/84. Athman Abdulrahman Aboud son 2/85. Jamal Abdulrahman Aboud son 2/8The [2/5] share of Mohamed Salim devolve to his legal heirs as follows:1. Salim Mohamed Salim son 2/142. Nuru Mohamed Bakhresa daughter 1/4 deceased *3. Rahma Mohamed Bakhresa daughter 1/4 deceasedThe [1/4 of 2/5] share of Rahma Mohamed Bakhresa devolve to her heirs as follows:1. Mohamed Salim Mohamed son2. Aisha Salim Bakharisa daughter3. Ali Salim Mohamed son4. Mbarak Salim Mohamed son5. Salma Salim Mohamed daughter6. Abdulrahman Salim Bakhressa son7. Twalib Salim Mohamed son8. Maryam Salim Mohamed daughter9. Ahmed Salim sonThe share of each son = 2/15The share of each daughter = 1/15The final list of heirs and their respective shares are:1. Awadh Jezan 20%2. Said Hemed Said 3. 07%3. Fatuma Hemed Said 1. 58%4. Mohamed Hemed Said 3. 07%5. Yahya Hemed Said 3. 07%6. Mbarak Hemed Said 3. 07%7. Abud Hemed Said 3. 07%8. Abdallah Swaleh Hemed 0. 298%9. Ahmed Swaleh Hemed 0. 298%10. Amina Swaleh Hemed 0. 149%11. Said Swaleh Hemed 0. 298%12. Ali Swaleh Hemed 0. 298%13. Hashim Swaleh Hemed 0. 298%14. Khadija Swaleh Hemed 0. 149%15. Maryam Swaleh Hemed 0. 149%16. Hamad Swaleh Hemed 0. 298%17. Mohamed Swaleh Hemed 0. 298%18. Aisha Swaleh Hemed 0. 149%19. Rukiya Hanzwani Hemed 0. 383%20. Fauziya Abdulrahman Aboud 2. 5%21. Gamar Abdulrahman Aboud 2. 5%22. Aboud Abdulrahman Aboud 5%23. Athman Abdulrahman Aboud 5%24. Jamal Abdulrahman Aboud 5%25. Salim Mohamed Salim 20%26. Nuru Mohamed Bakhresa 10% deceased *27. Mohamed Salim Mohamed 1. 3%28. Aisha Salim Bakharisa 0. 66%29. Ali Salim Mohamed 1. 3%30. Mbarak Salim Mohamed 1. 3%31. Salma Salim Mohamed 0. 66%32. Abdulrahman Salim Bakhressa 1. 3%33. Twalib Salim Mohamed 1. 3%34. Maryam Salim Mohamed 0. 66%35. Ahmed Salim 1. 3%The estate is hereby vested in the heirs in the shares indicated.
Distribution 9. Most beneficiaries would like to get their shares in monetary terms after selling the estate property. The respondent opposes the sale of the property. First opportunity is given to him to buy the property, upon ascertainment of the value of the property, by buying off the shares of his co heirs. The estate be valued for this purpose.
10. By consent the petitioners and respondent are appointed as Trustees of the estate.
11. In the event of sale of the estate property, the Trustees are granted leave to distribute the proceeds provided they shall deposit with the court, the sale agreement and receipts of the shares to all the beneficiaries.
Orders accordingly.
DATED AND DELIVERED IN MOMBASA ON 23RD APRIL 2015. ABDULHALIM H. ATHMANPRINCIPAL KADHIIn the presence of:Mr. Yusuf K. Abdulrahman, Court assistantMr. Nabhan for petitionersMr. Mulwa for respondent.