[2006] KEHC 1480 (KLR)
The court held that, pursuant to Section 3(3) of the Laws of Succession Act, the estate of a deceased Muslim who died intestate is to be governed by Muslim Law rather than the general provisions of the Act. The court further found that, since all beneficiaries appear to be Muslims, the Kadhi’s Court is the...
Source-derived case information.
- Citation
- [2006] KEHC 1480 (KLR)
- Parties
- Applicant: Applicant/Petitioner (name not specified); Respondent: Interested Party (name not specified)
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- ? 151 of 1994
- Procedural Posture
- Probate and Administration / Ruling on Applicable Law and Forum
- Outcome
- Matter transferred to the Kadhi’s Court at Eldoret for hearing and disposal.
- Judges
- AI Tullu
- Legal Topics
- Succession of Muslim Estates, Jurisdiction of Kadhis Court, Applicability of Laws of Succession Act
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Applicant/Petitioner (name not specified)
Applicant
Interested Party (name not specified)
Respondent
Procedural Posture
Probate and Administration / Ruling on Applicable Law and Forum
Legal Issues
- 1 Whether the estate of a deceased Muslim who died intestate should be administered under Islamic Law or the Laws of Succession Act.
- 2 Which court has jurisdiction to determine the succession of a Muslim estate.
Ratio Decidendi
The court held that, pursuant to Section 3(3) of the Laws of Succession Act, the estate of a deceased Muslim who died intestate is to be governed by Muslim Law rather than the general provisions of the Act. The court further found that, since all beneficiaries appear to be Muslims, the Kadhi’s Court is the appropriate forum for determining the distribution of the estate. The High Court exercised its jurisdiction to transfer the matter to the Kadhi’s Court at Eldoret for hearing and disposal, recognizing the Kadhi’s Court as the special court established to handle such matters involving Muslim personal law.
Court Disposition
Matter transferred to the Kadhi’s Court at Eldoret for hearing and disposal.
Orders
- This succession cause is transferred to the Kadhi’s Court at Eldoret for hearing and disposal.
- The matter shall be mentioned before the Kadhi’s Court at Eldoret on 22nd August, 2006 at 9:30 a.m.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
Prob & Admin 151 of 1994
IN THE MATTER OF THE ESTATE OF ALI SHITIALO IBRAHIM
RULING
The Applicant/Petitioner in this matter wish to have this dispute resolved under the provisions of Islamic Law since the deceased was a Muslim who died intestate. The Interested party on the other hand wishes to have this matter deceased under the provision of the Laws of Succession Act.
The Law is clear on this question: Section 3 (3) and (4) of the Laws of succession act provides :-
“ 4. .....................
(3)Subject to subsection (4), the provision of this Act shall not apply to testamentary or intestate succession to the Estate of an person who at the time of his death is a Muslim to the intent that in lieu of such provisions the devolution of the estate of any such person shall be governed by Muslim Law.
(4)Notwithstanding the provisions of subsection (3), the provisions of part VII relating to the administration of estates shall where they are inconsistent with those of Muslim Law apply in case of any Muslim dying before on or after 1st January,1991. ”
From the foregoing, Muslim Law shall be applicable in the determination of this matter especially with regard to distribution.
The Kadhi’s court has been given jurisdiction to determine questions of Muslim Law relating to personal status, marriage, divorce and inheritance in proceedings in which all parties profers the Muslim religion, but nothing limits the jurisdiction of the High Court or of any subordinate court in any proceedings which come before it.
In this matter it is clear that all the beneficiaries of the Estate of the deceased bear Muslim names and unless it is declared otherwise I will deem it that they are all muslims. In the circumstances I am of the view that this matter ought to be heard and determined by the Kadhi’s court at Eldoret. This is a special court set up to specifically deal with this situation.
In exercise of this court’s jurisdiction under the Laws of Succession Act and Section 18 of the Civil Procedure Act, if it applies, I do hereby order that this succession cause be and is hereby transferred to the Kadhi’s court at Eldoret for hearing and disposal.
DATED AND DELIVERED AT ELDORET ON THIS 29TH DAY OF JULY,2006.
M.K. IBRAHIM
JUDGE
29/07/2006
Coram – Ibrahim J.
C/C - Chelang’a
Mr. Chemitei for the Petitioners
Mr. Keter for the interested parties.
Ruling delivered in their presence.
This matter shall be mentioned before the Kadhi’s Court at Eldoret on 22nd August,2006 at 9:30 a.m.
M.K. IBRAHIM
JUDGE