Case ID:166404

In re Estate of Seleman Ibrahim (Deceased) [2020] eKLR

Case Metadata

Case Number:

Succession Cause 315 of 2014

Parties:

In re Estate of Seleman Ibrahim Alias Suleman Ibrahim (Deceased)

Date Delivered:

17 Nov 2020

Case Class:

Civil

Court:

High Court at Murang'a

Case Action:

Judgment

Judge(s):

Kanyi Kimondo

Citation:

In re Estate of Seleman Ibrahim (Deceased) [2020] eKLR

Court Division:

Civil

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MURANG’A

SUCCESSION CAUSE NO. 315 OF 2014

RE ESTATE OF SELEMAN IBRAHIM ALIAS SULEMAN IBRAHIM (DECEASED)

SAID SULEIMAN KIRARIA...................................1

ST

ADMINISTRATOR

VERSUS

ABDALLAH SULEMAN KIRARIA.......................2

ND

ADMINISTRATOR

JUDGMENT

1. Seleman Ibrahim

alias

Suleman Ibrahim (hereafter

the deceased

) died intestate on 19

th

June 2005.

2. He was married to three wives who bore for him ten children. They are listed in the letter of the Chief, Township Location, Murang’a annexed to the affidavit of the 1

st

administrator sworn on 1

st

August 2018.

3. Some of the children are now also deceased. But all the survivors, with the exception of

Abdallah Suleiman Kiraria

, have agreed on distribution of the deceased’s land known as

Loc 11/Maragi/1654.

4. The cause was lodged on 16

th

May 2014. On 7

th

October 2015, the disputants, who are sons of the deceased, were appointed as joint administrators. On 16

th

June 2016, a grandson to the deceased, Swaleh Nugire, filed summons to annul the grant. However, he withdrew the summons on 3

rd

July 2018.

5. I heard the evidence

viva voce

. The 1

st

administrator (who I will henceforth refer to as

Abdallah

) relied largely on his earlier affidavit sworn on 1

st

August 2018.

6. The dispute can be summarized as follows:

Abdallah

stakes a claim to 0.7 acres of the parcel of land previously known as loc. 11/Maragi/899 which mutated into Loc 11/Maragi/1654

(the suit property)

and which was originally registered in the names of the deceased and one

Joseph Nyaga Nguru

.

7. In Abdallah’s view the remainder should be divided equally between all the ten children or their successors. To support his argument, he testified that he has put up some structures (rooms) on the 0.7 acres. He said he has lived there since the year 1981.

8. He testified that during the lifetime of the deceased, he

(Abdallah)

gave two of those rooms as dowry to his wife

Hadijah Ibrahim Ndonga

. It was his case that his late father must have acquiesced to his occupation of the disputed portion. He produced the marriage certificate (exhibit 1) showing that the deceased was one of the three witnesses to the celebration of the marriage.

9. The 2

nd

administrator (who I will refer to as

Said

) disputes that the protestor is in possession of the 0.7 acres. He said he is the one who put up a toilet on it which they were using with the protestor until their differences flared up. He testified that

Abdallah

abandoned the construction works on the disputed portion which is now a bushland.

10. Lastly,

Abdallah

denied that he had allocated himself one acre of the deceased’s land as claimed in an earlier affidavit by Swaleh Ndugire sworn on 3

rd

June 2016. However, he admitted in court that he had encroached upon part of the

Said’s

land. But he proposed to retain the disputed portion and surrender an equivalent portion on the other side of the property. His brother will hear none of it.

11. Both parties filed written submissions. Those by

Abdallah

were lodged on 3

rd

January 2019; those by

Said

were presented on 8

th

January 2019.

12. When the parties addressed me on 19

th

October 2020, they confirmed that they did not wish to highlight their written submissions.

13. The deceased was a Muslim and so are the heirs. Ideally, the dispute should have been heard at the Kadhis Court. But

Abdallah

chose the High Court and none of the disputants objected to the jurisdiction of the court. Furthermore, under the

Law of Succession Act

, this court is clothed with jurisdiction upon such election by the parties.

14.

Abdallah

freely conceded at paragraph 7 of his affidavit of 1

st

August 2018 that the disputed portion of 0.7 acres straddles two titles: Loc. 11/Maragi 1654 owned by his deceased father; and, Loc. 11/Maragi 1655 now registered in the name of the

Said Suleman Kiraria

.

15.

Abdallah’s

claim must fail for four main reasons. Firstly, he did not fully discharge his legal and evidential burden to prove, on a balance of probabilities, that the deceased bequeathed the disputed portion to him. See section 107 of the

Evidence Act

.

16. True, the protestor gave his new bride,

Hadijah

, two rooms on the property as dowry. The applicant retorts that since the rooms were not identified, the dowry perhaps meant the rent. I do not think that point was proved either. The fact is that the property belonged to the deceased and the protestor had no power or right to designate part of it as dowry.

17. I was not also persuaded that the deceased by simply being a witness to the celebration of the marriage of

Abdallah

acquiesced or consented to transfer of the disputed portion (or even the two rooms) to him or his new bride.

18. Secondly, and as I have mentioned earlier, the disputed portion of 0.7 acres bestrides two titles: Loc. 11/Maragi 1654 owned by his deceased father; and, Loc. 11/Maragi 1655 now registered in the name of the

Said Suleman Kiraria

(the 2

nd

administrator) which the latter obtained by adverse possession from Joseph Nguru by dint of the decree in

Nairobi High Court O.S. 373 of 2006

.

19.

Said

is unwilling to be compensated with another portion by

Abdallah

on the other side of the property. To the extent that Loc. 11/Maragi 1655 is in

Said’s

name, it is no longer part of the estate of the deceased and I cannot compel him to accommodate

Abdallah

.

20. Thirdly,

Abdallah

did not marshal sufficient evidence to show that he put up permanent structures. It may well be that he occupied part of the disputed portion from the year 1981. But he is a son of the deceased and was entitled to live there. At the trial, it transpired that the construction was abandoned save for the toilet that used to be a common facility. In cross examination, it emerged that the corner is now a bushland.

21. Fourthly, and more importantly, all the children of the deceased are entitled to an

equal

share of his property. The

Law of Succession Act

is express on that point.

Abdallah

had submitted that had he not

“pestered his father with going to school, may be [his siblings] couldn’t have seen the inside of a classroom”

. That may well be so. It may also be true that his siblings are ungrateful for his sacrifices over the years. But he failed to prove that his father allocated him the disputed land; or, that he has a right to a larger share than his siblings or their successors.

22. The upshot is that the claim or protestations by

Abdallah Suleiman Kiraria

are without merit and are

dismissed

.

23. The net intestate estate of the deceased (which seems to be only

Loc. 11/Maragi 1654

) shall be distributed

equally

between the 10 children of the deceased or their successors as follows-

i. Mariam Ramadhani (daughter, deceased)

ii. Asha M. Chengo (daughter)

iii. Amina M. Saidi (daughter)

iv. Tunu Suleiman (deceased)

v. Hassan Suleiman Mwangi (son)

vi. Said Suleiman Kiraria (son)

vii. Abdallah Suleiman Kiraria (son)

viii. Miski Suleiman (son)

ix. Zaituni Suleiman (deceased)

x. Tabu Mumbi Suleiman (daughter)

24. The grant shall be confirmed in terms of this judgment.

25. Costs follow the event and are at the discretion of the court. In the interests of justice, each party shall bear its own costs.

It is so ordered.

DATED, SIGNED

and

DELIVERED

at

MURANG’A

this 17

th

day of November 2020.

KANYI KIMONDO

JUDGE

Judgment read in open court in the presence of:

1

st

Administrator (in person).

Mr. Gichuki for the 2

nd

Administrator instructed by Waiganjo Gichuki & Co. Advocates.

Ms. Dorcas Waichuhi & Ms. Susan Waiganjo, Court Assistants.