[2020] KEKC 10 (KLR)
The court determined that both Plot No. R140 Kiawara and Plot No. J5 Majengo constitute the estate of the deceased, Zainab Jumea Makame. The legal heirs were identified as the surviving children of the deceased and the children of predeceased heirs, with the shares devolving accordingly. The court applied Islamic...
Source-derived case information.
- Citation
- [2020] KEKC 10 (KLR)
- Parties
- Applicant: Rukia Njoki Hamisi; Respondent: Mwanaisha Halima; Respondent: Dausi Tunu
- Court
- Kadhis Courts
- Court Station
- Kadhis Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 16 of 2019
- Procedural Posture
- Succession Cause / Judgment
- Outcome
- Estate vested in the identified heirs in specified shares according to Islamic law; parties to consult and file valid consent for registration.
- Legal Topics
- Muslim Succession, Distribution of Estate, Identification of Heirs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rukia Njoki Hamisi
Applicant
Mwanaisha Halima
Respondent
Dausi Tunu
Respondent
Procedural Posture
Succession Cause / Judgment
Legal Issues
- 1 What constitutes the estate of the deceased for purposes of succession.
- 2 Who are the legal heirs entitled to inherit from the estate.
- 3 What is the lawful mode of distribution of the estate among the heirs.
Ratio Decidendi
The court determined that both Plot No. R140 Kiawara and Plot No. J5 Majengo constitute the estate of the deceased, Zainab Jumea Makame. The legal heirs were identified as the surviving children of the deceased and the children of predeceased heirs, with the shares devolving accordingly. The court applied Islamic law, specifically Quran Chapter 4, verse 11, which provides that a son receives twice the share of a daughter. The shares of deceased heirs devolve to their respective children, with the same male-to-female ratio. The court further held that, for purposes of land registration, up to five heirs may be registered as proprietors to hold the property in trust for all beneficiaries,...
Court Disposition
Estate vested in the identified heirs in specified shares according to Islamic law; parties to consult and file valid consent for registration.
Orders
- The estate is vested in the heirs as specified in the judgment.
- Devolution of the estate must indicate all heirs and their respective shares.
Full Case Text
Judgment text and source record
59 paragraphs
REPUBLIC OF KENYA
IN THE KADHI'S COURT AT NYERI
SUCCESSION CAUSE NO. 16 OF 2019
IN THE MATTER OF THE ESTATE OF ZAINAB JUMEA MAKAME---DECEASED
AND
RUKIA NJOKI HAMISI..............................PETITIONER
VERSUS
1. MWANAISHA HALIMA
2. DAUSI TUNU.....................................RESPONDENTS
JUDGEMENT
This is a succession matter. The petitioner is Rukia Njoki Hamisi. The respondents are Mwanaisha Halima and Dausi Tunu. The propositus in this matter is Zainab Jumea Makame. The estate in contention are parcels of lands;-
1. Plot No. R 140 Kiawara registered in the name of Zainab Jumea Makame.
2. Plot No. J 5 Majengo, registered in the name of Ali Bin Suleiman.
The parties have no dispute regarding plot no. J5 Majengo. Regarding Plot No.R 140 Kiawara , the petitioner claims that the plot is registered by the respondents name Mwanaisha Halima only.
The respondent, Mwanaisha Halima admitted that the plot is registered by her name and stated that it was registered by her name as a trustee only but is for all heirs.
Both parties are muslims . the deceased are also Muslims. This court has jurisdiction to hear and determine this matter under section 5 of the Kadhis Court Act Cap 11.
The issues for determination in this matter are;-
1. The estate
2. The legal heirs
3. The mode of distribution.
THE ESTATE
Both parties admit that the parcels of land;
1. Plot No. R140 Kiawara
2. Plot No. J5 Majengo
Constitutes the estate of the mentioned deceased.
THE LEGAL HEIRS
The original heirs of the deceased as given by both parties are;-
1. Maimuna Ali………. .. ..daughter ………deceased
2. Fatuma Ali………… daughter…………….deceased
3. Khadija Ali………….daughter…………….deceased
4. Zainabu Ali………….daughter…………….deceased
5. Halima Ali …………..daughter…………….surviving
6. Rukia Ali daughter…………….surviving
7. Muhamed Ali……….son deceased and not survived by a child.
8. Hussein Ali ……………son deceased
9. Bakari Ali (Makame Ali) deceased and not survived by a child.
The Mode of Distribution of the estate.
A son is entitled to twice the share of a daughter as per the Holy Quran Chapter 4, verse 11.
It states;-
“ Allah Commands you as regards your children’s inheritance to the male a portion equal to that of two females…..
The share of the son in this matter is 2/8 and the share of each daughter is 1/8.
The share of the deceased heirs devolve to their respective heirs/children, the male getting twice the share of the female.
The heir of Maimuna Ali is Saidi Ali Mkuki a son only.
The heirs of Fatuma Ali is Amina Musa , a daughter only.
The heirs of Hadija Ali are;
Rukia Yusuf , Saida Yusuf, Mohamed Yusuf, Saumu Yusuf, Kathum Yusuf.
The heirs of Zainabu Ali are;
Riziki Ali, Saida Ali, Fatuma Ali, Rahima Ali, AbduRahman Ali,Mwanajuma Ali.
The heirs of Hussein Ali are;
Abdalla Hussein, AbuBakar Hussein Ali.
The estate is hereby vested in the heirs herein above mentioned in the shares specified. Devolution of the estate must clearly indicate all the heirs and their respective shares. However, up to five heirs can be registered as proprietors in any given parcel of land of land under Cap 300, laws of land. The persons issued with the land in such a case hold it in trust on their own behalf and that of the other heirs. The identification of trustees depends to a large extent on consent of the legal beneficiaries. For the purpose of the registration, the heirs to consult and file a valid consent.
Orders accordingly.
Read and Dated this 20th day of February 2020 in court’
SAID HAMISI BEDZENGA
Hon. Principal Kadhi
Petitioner present in person.
Respondents in person present
Naomi C/A
20/02/20