Kenya Judgment

Kadhis Courts · Kadhis Court at Garsen

Omar Galana Hiribae v Alice Adhiambo Alucho [2017] KEKC 2 (KLR)

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Research organized from the available case record

Source document

01

Holding and result

The court found that the respondent admitted her marriage to the deceased was conducted under customary law and not Islamic law. Under Islamic jurisprudence, only a marriage conducted in accordance with Islamic law entitles a spouse to inherit from a deceased Muslim's estate. The respondent's admission was treated as strong evidence against her claim. Consequently, the court held that the respondent and her children are not entitled to inherit from the deceased's property, and her name should be removed from the list of beneficiaries. The applicant, however, is not entitled to claim any portion of the estate already distributed.

Court disposition

Application allowed in part; respondent and her children disqualified from inheritance; previous estate distributions remain undisturbed.

Orders

  • The respondent and her children are not entitled to inherit from the deceased property.
  • The public trustee should cancel the respondent’s name from the beneficiaries list.
  • The applicant should not claim the previous distribution of the estate which was already done.

02

Material facts

Parties

Omar Galana Hiribae

Applicant

Alice Adhiambo Alucho

Respondent

03

Procedural history

  1. Posture

    Civil Case / Ruling

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant argued that he is the biological father of the deceased, Fumo Omar Hiribae, and supported the previous applicant, Agnes Ndawari Balesa, as the wife of the deceased. He contended that the respondent did not prove a valid Islamic marriage to the deceased, did not observe the Eddah period, and therefore should not inherit under Islamic law.
Respondent
The respondent claimed she was married to the deceased customarily after the applicant (her father-in-law) refused to allow an Islamic marriage. She asserted that this customary marriage, performed under Muslim faith, made her the legal wife and entitled her and her children to inherit from the deceased's estate.

05

Court’s reasoning

  1. 01

    Islamic sharia and jurisprudence (fiqh sunnah)

    Marriage under Islamic law is a prerequisite for inheritance from a deceased Muslim's estate.

  2. 02

    Islamic jurisprudence (fiqh sunnah)

    Admission by a party is considered strong evidence in Islamic law.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the respondent admitted her marriage to the deceased was conducted under customary law and not Islamic law. Under Islamic jurisprudence, only a marriage conducted in accordance with Islamic law entitles a spouse to inherit from a deceased Muslim's estate. The respondent's admission was treated as strong evidence against her claim. Consequently, the court held that the respondent and her children are not entitled to inherit from the deceased's property, and her name should be removed from the list of beneficiaries. The applicant, however, is not entitled to claim any portion of the estate already distributed.

Obiter and limits

  • The respondent was not aware that marriage under customary law is not recognized in Islamic law for purposes of inheritance.
  • This Islamic court follows Islamic jurisprudence, and only marriages compliant with sharia are recognized for succession.

Court disposition

Application allowed in part; respondent and her children disqualified from inheritance; previous estate distributions remain undisturbed.

  • The respondent and her children are not entitled to inherit from the deceased property.
  • The public trustee should cancel the respondent’s name from the beneficiaries list.
  • The applicant should not claim the previous distribution of the estate which was already done.

Source and reliance status

Kadhis Courts

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Judgment text

The complete available source text.

Source document

Kadhis Courts

Judgment

[2017] KEKC 2 (KLR)

REPUBLIC OF KENYA

IN THE KADHI’S COURT AT GARSEN

CIVIL CASE NO 52 OF 2016

RULING

1. OMAR GALANA HIRIBAE...............................APPLICANT

2. ALICE ADHIAMBO ALUCHO........................RESPODENT

This is a review of the earlier orders issued by this court where by the previous applicant (Agnes Ndwari Balesa) has applied for distribution of the estate to heirs according to Islamic law. The matter was heard and determined by the previous kadhi Sheikh Rashid Kokonyo.It has been one year since the judgment was delivered.

The applicant filed his application dated 27 July 2017 and prayed for:

The honorable court to issue an order to the respondent to stop enjoying the deceased property and gratuity that the applicant to be the legal heir of the deceased.

His grounds being that:

1-He is the biological father of one Fumo Omar Hiribae who passed away on 2nd June 2013 at Taufiq Hospital Malindi.

2-The applicant support one Agnes Ndawari Balesa (previous applicant) as the wife of the deceased who filed a succession case before this court which has lost in the case because she was not a Muslim.

3-The defendant here did not produce any document or wetness to confirm that she was legally married to the deceased, neither did not stay Eddah period after the death of deceased as required by Islamic law.

On the other hand, the respondent through her affidavit dated 6th December 2016 stated that she was not in a position to be married under Islamic law as her father in- law refused and therefore they decided to perform their marriage customarily. On this basis, she alleged that she was the legal wife of the deceased after being married customarily and under Muslim faith.

Upon examining through the cross examination by the court, the respondent answered that," her marriage was not under the Islamic law since it was under customary.

I have noted the issue clearly and I found that the respondent was not aware that marriage under custom law is not allowed in Islamic law and this Islamic court follow Islamic jurisprudence.

According to Islamic sharia, the marriage is the major condition for one to inherit from the deceased estate. In addition to that, it clearly appeared to court that the respondent admitted through the examination by the court. According to the Islamic jurisprudence: (??????? ??? ?????? (fiqh sunnah) meaning: admitting is powerful evidence)

On this basis, I hereby order that:

1 – The respondent and her children are not entitled to inherit from the deceased property.

2 – The public trustee should cancel the respondent’s name from the beneficiaries list.

3 – The applicant should not claim the previous distribution of the estate which was already done.

These are orders of this court. R/A 30 days.

Delivered this on 24 the August 2017 In the present:

Mursal M Sizi Kadhi

C/A Guracho Abdallah

Applicant.

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