[2014] KEHC 4677 (KLR)
The High Court held that since both parties conceded the deceased was a Muslim and did not challenge the jurisdiction of the Kadhi's Court, and since probate proceedings were already ongoing before the Kadhi's Court, the matter was properly before that court. The existence of a written will does not remove the...
Source-derived case information.
- Citation
- [2014] KEHC 4677 (KLR)
- Parties
- Applicant: Zog'llo Zolleyn also known as Ali Said Ahmed; Respondent: Abdalla Said Ahmed
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 467 of 2013
- Procedural Posture
- Succession Cause / Ruling on Application for Administration and Distribution of Estate as Per Will
- Outcome
- application dismissed with costs to the respondent
- Judges
- JV Juma
- Legal Topics
- Succession of Estates, Muslim Law Inheritance, Probate Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zog'llo Zolleyn also known as Ali Said Ahmed
Applicant
Abdalla Said Ahmed
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Administration and Distribution of Estate as Per Will
Legal Issues
- 1 Whether the administration and distribution of the estate of Fatuma Hassan should be conducted as per the alleged valid will dated 23rd April, 2001.
- 2 Whether the High Court or the Kadhi's Court has jurisdiction over the probate proceedings of a deceased Muslim.
Ratio Decidendi
The High Court held that since both parties conceded the deceased was a Muslim and did not challenge the jurisdiction of the Kadhi's Court, and since probate proceedings were already ongoing before the Kadhi's Court, the matter was properly before that court. The existence of a written will does not remove the matter from the Kadhi's Court, which is competent to determine its validity and oversee the administration of the estate. The High Court therefore found no merit in the application seeking to have the estate administered as per the will in the High Court and dismissed the application with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application is dismissed.
- Costs of the application to be paid by the applicant to the respondent.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
SUCCESSION CAUSE NO. 467 OF 2013
IN THE MATTER OF THE ESTATE OF FATUMA HASSAN (DECEASED)
ZOG’LLO ZOLLEYN also known as ALI SAID AHMED…..…PETITIONER
AND
ABDALLA SAID AHMED..……………….………………..RESPONDENT
RULING
By way of this application dated 17th December, 2013 the applicant sought inter alia the following orders
“3. THAT the administration and distribution of the estate of FATUMA HASSAN (Deceased) be administered and distributed as per the valid will of the deceased dated 23rd April, 2001 and that this case be determined according to the procedure and rules of probate.
4. THAT the costs of this application be paid out of the estate.”
It is conceded by both parties that probate proceedings regarding the estate of the deceased Fatuma Hassan are already in progress before the Kadhi’s Court. It is further conceded by both parties that the deceased was a Muslim. The applicant through his advocate Ms. Ndetto also confirms that they do not challenge the jurisdiction of the Kadhi’s Court in this matter. That being the case in line with Article 170(5) of the Constitution I find that the matter is properly before the Kadhi’s Court. If as the applicant alleges the deceased left a valid written will then said will may be presented before the Kadhi Court for proof. The fact that there may exist a written will does not of necessity remove this matter from the Kadhi’s Court. The matter ought to proceed on the first instance before the Kadhi and only if any party is dissatisfied with the manner of probate in the Kadhi’s Court, then the matter may move upon appeal to the High Court. I find no merit in the present application and hereby dismiss the same with costs to the respondent.
Dated and delivered in Mombasa this 9th day of June, 2014.
M. ODERO
JUDGE
In the presence of:
No Appearance by either party.