[2009] KEHC 1478 (KLR)
The court found that the plaintiffs failed to disclose the existence of a handwritten will by the deceased, which expressly bequeathed the disputed four storey building to specific sons, Abdulqadir Ali and Abdisaalam. The court inferred mala fides from this omission and determined that the will, being unchallenged...
Source-derived case information.
- Citation
- [2009] KEHC 1478 (KLR)
- Parties
- Plaintiff: Mohamed Abdalla Mbarak; Plaintiff: Mohamud Abdalla Mbarak; Plaintiff: Abdulkalik Abdalla Mbarak; Plaintiff: Thureya Abdalla Mbarak; Defendant: Abdulkadir Abdalla Mbarak; Defendant: Ali Abdalla Mbarak; Defendant: Abdusalam Abdalla Mbarak; Defendant: Hamid Abdalla Mbarak; Defendant: Twalib Abdalla Mbarak
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Case 44 of 2007
- Procedural Posture
- Civil Case / Ruling
- Outcome
- suit dismissed with costs to the defendants
- Judges
- DO Ohungo
- Legal Topics
- Succession of Estates, Islamic Law Inheritance, Ownership of Property, Distribution of Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohamed Abdalla Mbarak
Plaintiff
Mohamud Abdalla Mbarak
Plaintiff
Abdulkalik Abdalla Mbarak
Plaintiff
Thureya Abdalla Mbarak
Plaintiff
Abdulkadir Abdalla Mbarak
Defendant
Ali Abdalla Mbarak
Defendant
Abdusalam Abdalla Mbarak
Defendant
Hamid Abdalla Mbarak
Defendant
Twalib Abdalla Mbarak
Defendant
Procedural Posture
Civil Case / Ruling
Legal Issues
- 1 Whether the four storey building at Kibaoni Village forms part of the deceased's estate.
- 2 Who are the lawful owners of the four storey building in dispute.
- 3 What are the respective shares of each heir or beneficiary if the property is part of the estate.
Ratio Decidendi
The court found that the plaintiffs failed to disclose the existence of a handwritten will by the deceased, which expressly bequeathed the disputed four storey building to specific sons, Abdulqadir Ali and Abdisaalam. The court inferred mala fides from this omission and determined that the will, being unchallenged and forming part of the court record, must be given effect. As such, the property in question does not form part of the general estate to be distributed among all heirs under Islamic Law. The plaintiffs did not prove their claim, and the prayers sought could not be granted.
Court Disposition
suit dismissed with costs to the defendants
Orders
- The suit is dismissed with costs to the defendants.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
Civil Case 44 of 2007
MOHAMED ABDALLA MBARAK &2 OTHERS............…PLAINTIFFS
VERSUS
ABDULKADIR ABDALLA MBARAK &4 OTHERS….DEFENDANTS
R U L I N G
Mohamed Abdallah Mbarak, Mohamud Abdalla Mbarak, Abdulkalik Abdalla Mbarak and Thureya Abdalla Mbarak (the plaintiffs) filed this suit by way of Originating Summons against Abdulkadir Abdalla Mbark, Ali Abdalla Mbarak, Abdusalam Abdalla Mbarak, Hamid Abdalla Mbarak and Twalib Abdalla Mbarak (the defendants)
A consent order was recorded on 20-5-97 regarding the distribution of the deceased’s property (i.e Abdalla Mbarak Bin Saad) except for the dispute involving the ownership of the four storey building situated along Kilifi- Malindi Road at Kibaoni Village. All the parties are siblings.
The issue is whether the four storey building under reference forms part of the deceased’s estate and what are the respective shares of each heir/beneficiary, and if, then who is/are the lawful owner(s) of the said property.
PW1 Abdulkalik Abdalla Mbarak gave viva voce evidence – he is one of the sons of the deceased Abdalla Mbarak Saad. He stated that in 1994, they obtained orders regarding distribution of the estate under Islamic Law and they entered consent regarding the distribution except for the one named property. He insists that the building belonged to their late father and it had no title. He however gave the court a copy of the original plan dated 26-1-06 from the Town Council showing the building plan (ex.3) and that it belongs to their father. He also produced a miscellaneous receipt of approval dated 14-1-86 (ex.4). It was his evidence that they were all born in that building and it should be distributed according to Islamic Law and it be valued as currently it is in the hands of the defendants yet it should form part of their late father’s estate.
I perused the court file and noticed a document dated 29-4-97 which is a transaction of a handwritten will by the late Abdallah Mbarak Saad declaring that his house in Kilifi (Kibaoni) being a four storey building is a property of his son, Abdulqadir Ali and Abdisaalam. Why is it that PW1 completely omits any mention of this will? Has this will been challenged?
To my mind, the plaintiff’s witness is guilty of non disclosure on this document which forms part of the court record and I cannot therefore ignore it that has not been alluded to at all. I can only infer mala fides for that omission.
Subsequently, the plaintiffs have not proved their claim and I decline to grant the prayers sought herein.
The suit is subsequently dismissed with costs to the defendants.
Delivered and dated this 8thday of July 2009at Malindi.
H. A. OMONDI
JUDGE
Plaintiffs present
Mr. Abdallah holding brief for Kilonzo for plaintiffs