[2012] KEHC 3689 (KLR)
The High Court held that there is no legal or constitutional basis for requiring a vesting order or confirmation from the High Court to implement a Kadhi's Court decree in succession matters involving Muslim estates. The refusal by the Land Registrar to register the property in accordance with the Kadhi's Court...
Source-derived case information.
- Citation
- [2012] KEHC 3689 (KLR)
- Parties
- Applicant: Nasra Mohamed Ali; Respondent: District Land Registrar, Mombasa
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 101 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Ex Parte Application for Vesting Order
- Outcome
- application allowed
- Judges
- F Tuiyott
- Legal Topics
- Vesting Orders, Succession Decrees, Trusteeship, Land Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nasra Mohamed Ali
Applicant
District Land Registrar, Mombasa
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Ex Parte Application for Vesting Order
Legal Issues
- 1 Whether the High Court is required to confirm or issue a vesting order to give effect to a Kadhi's Court decree in a succession matter involving Muslim estates.
- 2 Whether the Land Registrar is legally justified in refusing to register property in accordance with a Kadhi's Court decree without a High Court vesting order.
Ratio Decidendi
The High Court held that there is no legal or constitutional basis for requiring a vesting order or confirmation from the High Court to implement a Kadhi's Court decree in succession matters involving Muslim estates. The refusal by the Land Registrar to register the property in accordance with the Kadhi's Court decree was therefore unwarranted. The court relied on precedent and constitutional principles to affirm that the Kadhi's Court has jurisdiction in succession matters for Muslims and its decrees are binding and enforceable without further High Court intervention. Consequently, the application was allowed and the Land Registrar was directed to give effect to the Kadhi's Court decree.
Court Disposition
application allowed
Orders
- The Land Registrar, Mombasa is directed to give effect to the Kadhi's Decree issued on 14th July 2011 in Mbsa Succession No. 92 of 2011 regarding the Estate of Akbal Mohammed Hassan.
- Costs in the cause.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT 101 OF 2011
IN THE MATTER OF: THE ESTATE OF AKBAR MOHAMEDHASSAN (DECEASED)
AND
IN THE MATTER OF: AN APPLICATION FOR THE ISSUANCE OF A VESTING ORDER IN FAVOUR OF NASRA MOHAMED ALI,
THE PETITIONER IN MOMBASA KADHI’S COURT SUCCESSION CAUSE NO. 92 OF 2011
AND
IN THE MATTER OF: LAND PARCEL NO. MSA BLOCK/XII/108
NASRA MOHAMED ALI....................................................................................................APPLICANT
RULING
1. Before me is an Exparte application dated 16th September 2011 in which the Applicant, Nasra Mohamed Ali seeks the following prayers;
(a)That the Orders of the Kadhi’s Court in Mombasa Succession Cause No. 92 of 2011 be confirmed and made absolute in favour of the Petitioner, Nasra Mohamed Ali as Trustee of SABRI AKBAL MOHAMED, BASMAH AKBAL MOHAMED, SUMAEYAH AKBAL MOHAMED proprietors of the parcel of land known as Plot No. Mombasa/Block/XII/108.
(b)That the parcel of land No. Mombasa/Block/XII/108 be vested absolutely in favour of Nasra Mohamed Ali.”
2. On 14th July 2012 the Applicant obtained the following orders before the Kadhi in Cause No. 92 of 2011 as is relevant;
“2. That the property known as MSA/Block XII/108
be registered in the name of Nasra Mohamed Ali as Trustee for Sabri Akbal Mohamed ½ share, Basmah Akbal Mohamed ¼ share and Sumaeyah Akbal Mohamed ¼ share.
4. That the Land Registrar Mombasa to effect the
registration of this Decree.”
3. I am told by the Applicant that The District Land Registrar has refused to effect the changes in the registry to accord with the Decree hence this application. The stance taken by the Land Registrar is wholly unnecessary but borne out of practice and perhaps abundant caution. No one should begrude the Registrar.
4. That stance however does not have the support of the law and on this I can do no better than restate the words of my brother Justice Muriithi when he was called upon to decide an application similar to this in Mbsa HCC Misc. Application No. 736 of 2011 (Re: Estate of Said Abdalla)-
“The requirement of a vesting order or a confirmation of vesting order of the High Court to confirm or approve the determination of the Kadhis court on matters of Succession of Estate of deceased Muslims has no basis in law and is unconstitutional …”
5. I allow the application and direct the Land Registrar, Mombasa to give effect to the Kadhi’s Decree issued on 14th July 2011 in Mbsa Succession No. 92 of 2011 RE The Estate of Akbal Mohammed Hassan.
6. Costs in the cause.
Dated and delivered at Mombasa this 27th day of June, 2012.
F. TUIYOTT
JUDGE
Dated and delivered in open court in the presence of:-
Mwijuma for Applicant
No appearance for Respondent
Court clerk - Moriasi
F. TUIYOTT
JUDGE