[2015] KEKC 18 (KLR)
The court found that the applicant, as the mother of the deceased, is entitled to inherit the estate in accordance with the consent agreement entered into by all parties. The respondents, being the only other heirs, have expressly agreed to relinquish their inheritance rights in favor of the applicant. There was no...
Source-derived case information.
- Citation
- [2015] KEKC 18 (KLR)
- Parties
- Applicant: Zakiya Nasher; Respondent: Eshe Abdulrahim Awath; Respondent: Wahida Abdulrahim Awath
- Court
- Kadhis Courts
- Court Station
- Kadhis Court at Nairobi (Milimani Commercial Court)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 33 of 2015
- Procedural Posture
- Succession Application / Judgment
- Outcome
- application allowed
- Legal Topics
- Succession of Estates, Distribution of Inheritance, Consent Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zakiya Nasher
Applicant
Eshe Abdulrahim Awath
Respondent
Wahida Abdulrahim Awath
Respondent
Procedural Posture
Succession Application / Judgment
Legal Issues
- 1 Whether the applicant is the rightful legal heir of the deceased under Islamic law and the Law of Succession Act.
- 2 Whether the respondents have lawfully relinquished their inheritance rights to the applicant.
- 3 Whether the estate should be distributed solely to the applicant as per the consent agreement.
Ratio Decidendi
The court found that the applicant, as the mother of the deceased, is entitled to inherit the estate in accordance with the consent agreement entered into by all parties. The respondents, being the only other heirs, have expressly agreed to relinquish their inheritance rights in favor of the applicant. There was no evidence of any other dependants or heirs. The court was satisfied that the consent was genuine, voluntary, and not challenged by any party. Accordingly, the court declared the applicant as the rightful legal heir of the deceased and allowed the application as prayed.
Court Disposition
application allowed
Orders
- It is declared that Sabah Abdulrahim Awath and Usra Abdulrahim Awath died Muslims on 3rd January 2014.
- Zakiya Nasher is hereby declared as the rightful legal heir of the deceased.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE KADHI'S COURT AT NAIROBI
CIVIL CASE NO. 33 OF 2015
IN THE MATTER OF :THE ESTATE OF SABAH ABDULRAHIM AWATH AND USRA ABDULRAHIM AWATH (DECEASED)
AND
IN THE MATTER OF : THE KADHI'S COURT ACT SECTION 5 CAP 11 LAWS OF KENYA
AND
IN THE MATTER OF: THE LAW OF SUCCESSION ACT SEC 49(2) CAP 160 LAWS OF KENYA
BETWEEN
ZAKIYA NASHER.....................................................APPLICANT
AND
ESHE ABDULRAHIM AWATH....................1ST RESPONDENT
WAHIDA ABDULRAHIM AWATH..............2ND RESPONDENT
J U D G E M E N T
The Applicant through originating summons dated 29th July ,2015 sued respondents seeking a declaration that:-
1. That SABAH ABDULRAHIM AWATH and USRA ABDULRAHIM AWATH died Muslims on the 3rd day of January 2014.
2. That the Applicant be declared as the rightful legal heir of the deceased.
The Originating summons was supported by the Affidavit of Zakiya Nasher, according to the applicant , that the deceased was survived by the following:-
Name Status
Zakiya Nasher - Mother
Eshe Abdulrahim Awath - Sister
Wahida Abdulrahim Awath - Sister
At the time of Sabah Abdulrahim Awath and Usra Abdulrahim Awath death they left the following unencumbered and available properties, held in equal shares by the Applicants , Respondent and deceased as particularized on paragraph 2 of the affidavit.
(a) Title No. Embu Municipality/104 - Total estimated Value of Kenya Shillings Seventeen Million (Ksh. 17,000,000/-)
The applicant is related to the deceased by virtue of being their mother and they did not left behind any dependant.
The applicant claim is based on the fact that the Respondents have agreed to relinquish their inheritance right towards the property of the deceased.
The Respondents filed a replying affidavit dated 11th August and received in the court on the same date and stated as follows in Para 3 and 4 respectively thereof;
THAT Usra Abdulrahim Awath and Sabah Abdulrahim Awath are the daughters of the applicant and sisters to the respondents.
THAT it has been agreed between the applicant and the respondent that the applicant will take the deceased shares.
The Application was also supported by the consent agreement entered between the Applicant and Respondents date 26th August 2015 and filed 0n 14th September 2015.
It could be clearly evinced and gauged from the evidence adduced before this court that there is no dispute between the parties herein as to distribution of the deceased estate and in fact they have recorded a consent on the mode of distribution of the deceased estate as appears in agreement entered between the Applicant and the Respondent dated 26th August 2015 and file on 14th September 2015.
I am therefore satisfied that there is no reason to disbelieve the uncontroverted, unrebutted and unchallenged testimony of the Applicant (Mother) which was supported by the response of the respondents and further corroborated and /or supported by the Consent agreement recorded between the Applicant and Respondents on 26th August 2015 and filed on 14th September 2015
Accordingly, the Application is allowed in following terms.
1. THAT, Sabah Abdulrahim Awath and Usra Abdulrahim Awath died Muslims on 3rd January 2014.
2. THAT, the Applicant Zakiya Nasher be and is hereby declared as the rightful legal heirs of the deceased..
No order as to cost.
Dated and Delivered at Nairobi this 30th day of September,2015.
Hon. A. I. Hussein
Kadhi II