[2014] KEHC 2541 (KLR)

[2014] KEHC 2541 (KLR)

The High Court determined that, since all parties to the application profess the Muslim faith and the issue in dispute concerns a trust allegedly created under Muslim Law, the proper forum for the determination of whether the suit property was held in trust for the respondents is the Kadhis’ court. The court found that the Kadhis’ court has exclusive jurisdiction over questions of inheritance and related trusts under Muslim Law when all parties are Muslims and submit to its jurisdiction. The High Court therefore remitted the specific issue of the existence of the trust to the Kadhis’ court for determination, while retaining jurisdiction over other aspects of the succession cause. The...

Citation
[2014] KEHC 2541 (KLR)
Parties
Applicant: Saida Bashir; Respondent: Hussein Bashir; Respondent: Ahmed Bashir
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
2 October 2014
Case Number
Succession Cause 1679 of 2007
Procedural Posture
Succession Cause / Ruling on Application Regarding Trust and Jurisdiction
Outcome
Partial referral to Kadhis’ court for determination of trust issue; High Court retains jurisdiction over other matters.
Judges
LK Kimaru
Legal Topics
Muslim Succession, Trusts in Islamic Law, Jurisdiction of Kadhis Court, Estate Administration
Source Language
English
Family and Children Land and Property Muslim Succession Trusts in Islamic Law Jurisdiction of Kadhis Court Estate Administration

Case Brief

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Parties

Saida Bashir

Applicant

Hussein Bashir

Respondent

Ahmed Bashir

Respondent

Procedural Posture

Succession Cause / Ruling on Application Regarding Trust and Jurisdiction

Legal Issues

  1. 1 Whether the suit property was held in trust by the deceased for the respondents under Muslim Law.
  2. 2 Whether the High Court or the Kadhis’ court has jurisdiction to determine the existence of a trust under Muslim Law in the context of succession.

Ratio Decidendi

The High Court determined that, since all parties to the application profess the Muslim faith and the issue in dispute concerns a trust allegedly created under Muslim Law, the proper forum for the determination of whether the suit property was held in trust for the respondents is the Kadhis’ court. The court found that the Kadhis’ court has exclusive jurisdiction over questions of inheritance and related trusts under Muslim Law when all parties are Muslims and submit to its jurisdiction. The High Court therefore remitted the specific issue of the existence of the trust to the Kadhis’ court for determination, while retaining jurisdiction over other aspects of the succession cause. The...

Court Disposition

Partial referral to Kadhis’ court for determination of trust issue; High Court retains jurisdiction over other matters.

Orders

  • The issue of whether the suit property was held in trust for the respondents by the deceased is remitted to the Kadhis’ court for determination.
  • The Kadhi shall determine the dispute within forty-five (45) days of this ruling and transmit the decision to the High Court for adoption.