[2016] KEKC 1 (KLR)
The court found that the Migosi plot was not part of the deceased's estate as it had been sold before his death. The only property available for distribution was Plot No. 89 at Kaloleni, which generates rental income. The court applied Islamic law, specifically the rules in Qur'an Nisa: 11-12, to determine the...
Source-derived case information.
- Citation
- [2016] KEKC 1 (KLR)
- Parties
- Applicant: Leaha Nyangasi; Respondent: Mwanahamis Omar
- Court
- Kadhis Courts
- Court Station
- Kadhis Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 10 of 2015
- Procedural Posture
- Succession Cause / Judgment
- Outcome
- Estate distributed among legal heirs per Islamic law; respondent to pay specified school fees and rent; all beneficiaries to contribute to municipal rates; respondent appointed administrator.
- Legal Topics
- Islamic Inheritance, Succession Distribution, Widows Entitlement, Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Leaha Nyangasi
Applicant
Mwanahamis Omar
Respondent
Procedural Posture
Succession Cause / Judgment
Legal Issues
- 1 Whether the applicant is entitled to a share of the deceased's estate under Islamic law.
- 2 How the estate of Omar Swaleh Doso should be distributed among the legal heirs.
- 3 Whether the respondent unlawfully excluded the applicant from the estate proceeds.
Ratio Decidendi
The court found that the Migosi plot was not part of the deceased's estate as it had been sold before his death. The only property available for distribution was Plot No. 89 at Kaloleni, which generates rental income. The court applied Islamic law, specifically the rules in Qur'an Nisa: 11-12, to determine the shares of the legal heirs. The court allocated specific rooms and rental proceeds from the Kaloleni property to each heir, ensuring that widows and children received their respective shares. The respondent was ordered to pay outstanding school fees and rent for the applicant within seven days, after which she would have no further responsibility for these payments. The court also...
Court Disposition
Estate distributed among legal heirs per Islamic law; respondent to pay specified school fees and rent; all beneficiaries to contribute to municipal rates; respondent appointed administrator.
Orders
- The respondent shall pay KES 11,000 as school fees for the applicant's son within 7 days from the date of judgment; thereafter, she will have no further responsibility for school fees.
- The respondent shall pay KES 2,000 as house rent for February within 7 days from the date of judgment; thereafter, she will have no further responsibility for rent.
Full Case Text
Judgment text and source record
64 paragraphs
REPUBLIC OF KENYA
IN THE KADHIS COURT AT KISUMU
SUCCESSION CAUSE NO 10 OF 2015
IN THE MATTER OF THE ESTATE OMAR SWALEH DOSO (DECEASED)
LEAHA NYANGASI........................................................APPLICANT
MWANA HAMISI OMAR..........................................RESPONDENT
JUDGEMENT
LEAHA NYANGASIof identity card number 1087475 referred herein as a petitioner filed a petition on 11th day of AUGUST 2015
the petitioner claimed that: She and the respondent are both widows left by the late Omar Swaleh Doso .was survived by the following .
Mwanahamis Omar (widow)
Leaha Nyangasi (widow)
Mariam Omar (daughter)
Swaleh Omar (son deceased)
Ramdhan Omar (son deceased)
Mwanarabu Omar (daughter)
Khadija Omar (daughter)
Swaleh Omar (son)
Mwanahawa Omar (daughter)
Mohamed Omar (son deceased)
Mwanaisha omar (daughter)
The late omar swaleh Doso left two plots as follow:
1- KISUMU/MIGOSI/ 446
2- KALOLENI NO 89
The petitioner sought that the both plots ware developed and residential where as the Migosi Plot was being rented , and the Kaloleni one was being used by the first family for residential.
The petitioner stay with her16 years old son in a one room rental house paying rent of 2000/= per month.
The petitioner claimed that she has no income and was depending on her husband for her upkeep and the education for her son.
The respondent has refused in - cooperate the petitioner in the proceeds from any asset left by the husband, addition to that the respondent has sold the migosi plot without the consent of the whole family and has not shared the proceed with anybody.
The petitioner stated that she has withdrawn her son from boarding school to day school because she cannot afford to pay his boarding fees yet.
On the other hand The respondent denied the petitioner's allegation in respect of the migosi plot and stated that the house at migosi was not in their name it is somebody property bought from the late omar swaleh dosa before his death. The only haouse they are collecting rent from is plot no 89 at Kalolenione 12000/= per month . to support the issue the respondent a valid one witness namely john Wamboto.
The W D1 stated that Mr Lukoye introduced him to Omar Swaleh Dosa and his wife they discussed and agreed to sell the house to him, Mr wamboto has two houses at Arin and Migosi He moved dosa and his wife to stay at arina. He bought block 6/253 was belong to Dosa and his wife mwanahamis the house is in Mr wombotp's name he coun't remember if has a sale garment.
The respondent agreed that it is on her responsibility to pay school fees and house rent for petitioner, unfortunately has not pay rent for February and school fees for last time in last year and first time in this year.
I have noted the issue clearly and I found that there is no plot in KISUMU migosi in the name of the deceased(Omar Swaleh Dosa) as petitioner alleged. This is Because the house was sold by the deceased before his death .
Concerning the rent and school fees the respondent agreed to pay them.
The issues for determination in this matter is as follow:
under Islamic law, the widows are entitled to one eighth (1/8) share if the deceased left a child. Each son is entitled to twice the share of the daughter under Qur'an:Nisa: 11-12
In this matter the honorable court gave the parties herein a chance to agree one of the following options :
(a)The Respondent to pay for the house
(b)The petitioner to pay the Respondent for him to forgo his share.
(c) The house to be sold and the proceeds shared .
feeler to the above court will finally decide(??? ?????? ???? ??????)
It is evident to this court that parties have refused to agree on either of the above option given to them therefore the decision of this as follows :
The legal heirs and mode of distribution of the estate of Omar Swaleh Dosa are:
legal heirs relative share fraction
Leaha Nyangasi (widow) room no 1 rented for 1500
Swaleh Omar (son) room no 2 rented for 1500 and the room at right side of the house
Mwanahamis Omar (widow) Room no 3 rented for 1500
Swaleh Omar (son babuji) room no 4 rented for 1300 and no 6 rented for1000
Mariam Omar (daughter) room no 5 occupy by grand children shall devolve to maryam because they are not direct beneficiaries.
Khadija Omar (daughter) Room no 7 occupy by broths shall devolve to khadija
Mwanarabu Omar (daughter) room no 8 and 9 each one rented for 500/=
Mwanahawa Omar and mwanaisha omar (daughters) room no 10 and 11where the respondent stays devolve to them
Concerning the school fees and house rent I hereby order that:
1- the respondent to pay fees ksh 11000/= within 7 days from today and it will no longer be her responsibility any more.
2- That the respondent to pay Sh 2000= rent for February as a house rent within 7 days from today and it will no longer be her responsibility any more.
3- Concerning municipal rats of 89152 all beneficiaries shall contribute to clear it as follow :
Each male shall contribute ksh 16210 before end of this year.
Each famale shal contribute 8105 before end of this year.
the respondent mwanahamis omar shall be administrator of the estate to ensure that the court orders are flown .
these are orders of this court .
These are orders of this Court.
R/A- 30 Days
read and delivered this 11th day of FEBRUARY 2016 in the presence of Mursal. M . Sizi ------ Kadhi 11
court asistant--------- Rahma Akidah
Petitioner