[2010] KEHC 3402 (KLR)
The court found that section 71(4) of the Law of Succession Act expressly provides for the immediate issue of a confirmed grant of representation. The Chief Kadhi had already determined the succession question in relation to the estate of the deceased, awarding the leasehold property to the applicant and raising no...
Source-derived case information.
- Citation
- [2010] KEHC 3402 (KLR)
- Parties
- Applicant: Hussein Seifudin Hassanali Mohamedbhai; Respondent: Estate of Khatijabai d/o Gulamhussein Esmailje Karachiwalla also known as Khatijabai Saifudin Mohamedbhai (deceased)
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 72 of 2010
- Procedural Posture
- Succession Cause / Summons for Immediate Issue of Confirmed Grant of Representation
- Outcome
- Application for immediate issue of confirmed grant of representation granted.
- Judges
- JB Ojwang
- Legal Topics
- Muslim Succession, Grant of Representation, Confirmed Grant, Kadhi Court Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Hussein Seifudin Hassanali Mohamedbhai
Applicant
Estate of Khatijabai d/o Gulamhussein Esmailje Karachiwalla also known as Khatijabai Saifudin Mohamedbhai (deceased)
Respondent
Procedural Posture
Succession Cause / Summons for Immediate Issue of Confirmed Grant of Representation
Legal Issues
- 1 Whether the applicant is entitled to the immediate issue of a confirmed grant of representation under section 71(4) of the Law of Succession Act.
- 2 Whether the Chief Kadhi's decision on the distribution of the estate is final and binding in this matter.
Ratio Decidendi
The court found that section 71(4) of the Law of Succession Act expressly provides for the immediate issue of a confirmed grant of representation. The Chief Kadhi had already determined the succession question in relation to the estate of the deceased, awarding the leasehold property to the applicant and raising no objection to the issuance of letters of administration. The court held that the Kadhi's decision is final and binding in law, subject only to appeal on a question of law. Given the urgency due to the leasehold's limited remaining term and the absence of any opposition, the court granted the prayers for the immediate issue of a confirmed grant of representation to the applicant.
Court Disposition
Application for immediate issue of confirmed grant of representation granted.
Orders
- Prayer (1) is granted.
- Prayer (2) is granted: confirmed Grant of Representation of the Estate of Khatijabhai d/o Gulamhussein Esmailje Karachiwalla also known as Khatijabhai Seifudin Mohamedbhai (Deceased) to Hussein Seifudin Hassanali Mohamedbhai.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA
Succession Cause 72 of 2010
IN THE MATTER OF: THE Estate OF KHATIJABAI d/o
GULAMHUSSEIN ESMAILJE KARACHIWALLA
also known as KHATIJABAI SAIFUDIN
MOHAMEDBHAI (deceased)
RULING
What has come up before the Court is a “Summons for the Immediate Issue of a confirmed Grant of Representation”, in the terms of s. 71(4) of the Law of Succession Act (Cap. 160, Laws of Kenya).
There is a practical reason justifying the prayer for a confirmed grant being issued on an ex parte basis and under certificate of urgency. As learned counsel Mr. Kinyuahas explained, the property in question is a single unit, and it is a leasehold with only a couple years to run to its end; and so judicial orders relating to it will only give satisfaction to a party if they are promptly made.
But more important, s.71 (4) of the Law of Succession Act has expressly provided for the “immediate issue of a confirmed grant”.
The legal validity of such a grant goes back to the Kadhi’s Courts Act (Cap. 11, Laws of Kenya) – in particular s.5 thereof, as read together with s.66(2) and (5) of the Constitution. These relevant provisions of the Constitution have donated full powers to the Kadhi, to determine a succession question such as that which is now before the Court: where the deceased is a Muslim, and the beneficiary of the deceased’s estate is a Muslim. Strictly in law, in relation to property of such a kind, the Kadhi’s decision has finality, and can only be questioned by a normal process of appeal, on a relevant question of law.
On 27th January, 2010 the Chief Kadhi gave his ruling in Succession Cause No. 196 of 2009 (O.S), in relation to the Estate of Khatijabai d/o Gulamhussein Esmailje Karachiwalla also known as Khatijabai Saifudin Mohamedbhai (deceased), and his crucial decision was rendered as follows:
“This Court therefore hereby orders that the Leasehold No. L.R. 1149/XX/64…renumbered
Mombasa/BlockXX/64 will be the property of Hussein Seifudin Hassanali Mohamedbhai and also that this Court has no objection to….the issuance of the Letters of Administration to the said Hussein Seifudin Hassanali Mohanedbhai”.
In law, therefore, the above-cited decision of the Chief Kadhi stands as a final decision.
This is the basis upon which I have now considered the application before me.
I will make orders as follows:
1. Prayer (1) is granted.
2. Prayer (2) is granted. I hereby order issuance of a
confirmed Grant of Representation of the Estate of
Khatijabhai d/o Gulamhussein Esmailje Karachiwalla
also known as Khatijabhai Seifudin Mohamedbhai
(Deceased) to Hussein Seifudin Hassanali
Mohamedbhai of P. O. Box 84720, Mombasa.
3. The application shall be listed for inter partes
hearing on 19th April, 2010.
4. Costs shall be in the cause.
DATEDand DELIVERED at MOMBASA this 18th day of March, 2010.
J. B. OJWANG
JUDGE
Coram: Ojwang, J
Court Clerk: Ibrahim
For the Petitioner/Applicant: Mr. Kinyua