[1927] EACA 47

## ORIGINAL CIVIL.

## Before PICKERING, J.

## In the matter of an Application by the WAKF COMMIS-SIONERS for the Kenya Protectorate under Section 12 of the Wakf Commissioners Regulations, 1900.

## C. C. 46/1926 (Mombasa Registry).

- The Wakf Commissioners Ordinance (Cap. 28) Section 10unclaimed property of Mohammedan natives to vest in Commissioners. - $Held:$ -That after sanction has been given by the Court under Section 13, (Cap. 28), the retention of the property by the Commissioners can only be affected by a judgment passed in a suit. Further<br>held that where the Court sanctions delivery of property to the Commissioners such property should be deemed to have vested in them primarily in trust for the lawful owners and secondarily in trust for all Mohammedans locally resident, and that the property should, without regard to the period for which it has been held, be handed over to the heirs whose claims are established by reliable evidence.

MR. BEMISTER, Secretary to the Wakf Commissioners.—The Commissioners have raised the question of limitation upon these claims lest the Auditors or members of the public question any payment as being merely voluntary.

ORDER (dated 15-3-28).—On the 7th July, 1926, my brother Sheridan sanctioned the payment of the monies now claimed, to the Wakf Commissioners upon the ground that being property of Mohammedan natives to which no claim could be established the It is difficult to see how monies had vested in the Commissioners. this Section can operate. Under Section 13 the property of deceased natives to which no claim can be established is declared to vest in the Commissioners. The present claims bear testimony to the impossibility of affirming that no claim can be established. The Section in my opinion is ineffective as it stands. Personally I should hesitate to affirm that to part of an estate no claim could ever be established.

In respect of these particular monies however the Court has declared that the conditions under which the property of deceased natives vests in the Commissioners actually existed and the money duly passed into their possession. Have I now any power to recall that sanction? I fear that I have no power. The payment to the Commissioners has been sanctioned. It now transpires that probably the sanction ought not to have been given because the circumstances in which property vests did not exist. For good or ill this Court has exhausted its powers under

Section 13 and under the provisions of that Section I can do nothing in relation to the monies claimed. The retention thereof by the Commissioners can only be affected by a judgment passed in a suit.

Having regard to the statement made by the Secretary I should like to suggest briefly what considerations should influence the Commissioners when claims of this nature are communicated to them. In my opinion when the Court sanctions the delivery of property to them, such property should be deemed to have vested in them primarily in trust for the lawful owners and secondly in trust for all Mohammedans locally resident. The local Government hands over the property of deceased Mohammedans upon these terms. The English Government has always met claims established against funds held by them as bona vacantia without regard to the period during which the This practice is in accord with the funds may have been held. Sheria, which apart from local enactments, does not recognize periods of prescription or limitation of suits. Our local provision is contained in the declaration issued in 1898 promulgating the instructions addressed by His Highness Seyyid Khalifa to the Wali of Mombasa on the 23rd Shaban, 1306, which reads "No claim in any civil matter which has been dormant for a period of twelve years shall be cognisable, save in cases of fraud, by any Native Court in the Protectorate." It may be that by reason of this declaration although they are not thereby deprived of the ownership of the funds claimed the claimants would not be able to obtain the assistance of local courts in a suit for the recovery of their property from the Commissioners; and this in spite of the fact that a court would certainly regard with disfavour a trustee. who pleaded limitation in bar of a suit against him by a cestui que trust for the recovery of the latter's belongings. Having regard to the general provisions of the Sheria it is almost incredible that the Wakf Commissioners, if satisfied of the validity of the claims preferred, should refuse to pay over the funds vested in them as trustees for the claimants, screening themselves behind the fact that the claimants are unable to invoke the assistance of the local courts. For this reason I was glad when the Secretary of the Commissioners assured me that the hesitation of the Commissioners in paying these claims was caused by a doubt as to whether the property in the funds claimed still remained in the claimants. I trust that a reference to the terms of the instruction issued by His Highness Seyyed Khalifa will allay that doubt, and that these monies, where reliable evidence has been adduced, will be handed over to the heirs. By the receipt of the money a duty of scrutinising the claims made is of course accepted by the Commissioners.