Review: The Role of the High Court in the Administration of the Islamic Estate and an Overview of Succession in Islamic Law

 

1.0 Introduction

To begin with, Article 24(4) of the Constitution of Kenya qualifies the right to equality “to the extent strictly necessary for the application of” Islamic law “in matters relating to personal status, marriage, divorce and inheritance”. Notably, Section 3 of the Marriage Act provides that, although spouses have equal rights during marriage and at its dissolution, “the parties to an Islamic marriage shall only have the rights granted under Islamic law”. The Law of Succession Act states that it is generally not applicable to the estate of a deceased Muslim. This article therefore undertakes to review the role of the High Court of Kenya in its involvement in the Islamic estate as guided by the various laws of Kenya, and an exclusive review of the law on succession under Islamic law. It examines case law from the Kadhi’s Court, the High Court and the Court of Appeal on issues of Muslim marriages and inheritance, with some cases clearly illustrating the tensions that exist between Islamic law and human rights law.

Generally, any application of the law relating to a Muslim’s personal status, marriage, divorce and inheritance outside Islamic Sharia could be interpreted as an affront to a Muslim’s freedom of religion which is guaranteed by the Constitution.

Section 2(3) of the law of Succession Act provides that the applicable law in relation to a deceased Muslim shall be Muslim law. The provision is reproduced below:

“Subject to subsection (4), the provision of this Act shall not apply to testamentary or intestate succession to the estate of any person who at the time of his death is a Muslim to the intent that in lieu of such provisions the devolution of the estate of any such person shall be governed by Muslim law.”

Reference is made to the case: In the Matter of the Estate of Ishmael Juma Chelanga – Deceased [2002] eKLR,  Etyang, J. was faced with a similar case had this to say:

“Under Islamic Law no non-Muslim is permitted to inherit the estate of a Muslim. This was ably verified in this court by the Kadhi of Nairobi Mr. Hammat Mohammed Kassim. It follows therefore that C, who had conceded that she is a Catholic, cannot inherit a share of the estate of her deceased father, a Muslim, by reason of her being a non-Muslim.


Secondly, an illegitimate child does not inherit the estate of his or her father but is permitted to inherit from his or her mother. The reason for this can be found in the Principles of Mohammedan Law by Dr (Mrs) Nishi Patel 1995 CTS publication Cap XIII at page 251:


“LAW OF PARENTAGE: INTRODUCTION


The Law of parentage which includes paternity and maternity, is the result of the institution of marriage. A Mohammedan marriage is a contract, which confers the status of husband and wife on the parties and of legitimacy on the children. Parentage gives rise to the concepts of legitimacy and illegitimacy. Illegitimacy is totally untolerated and sexual relations outside marriage are condemned as illicit and the woman who involved in it, is punishable for Zina (fornication)”.


It must then follow that, both C and N who are illegitimate children are not entitled to a share of the deceased’s estate.

2.0 Overview

2.1 Jurisdiction of The Kadhi’s Court

Article 170(1) of the Constitution establishes the Kadhi’s courts. A Kadhi’s Court is one of the subordinate courts and is supervised by the High Court. Article 170(5) provides that “[t]he jurisdiction of a Kadhi’s court shall be limited to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion and submit to the jurisdiction of the Kadhi’s courts.”

Section 5 of the Kadhis’ Courts Act reproduces Article 170(5) of the Constitution verbatim.

In HA v AH, the High Court referred to article 170(5) of the Constitution and held that “[t]he 3 factors on the jurisdiction of the Kadhi’s Court are not disjunctive but conjunctive. They must all exist together for the Court to have jurisdiction. Where they do not, the Kadhi’s Court is stripped of jurisdiction.” It is therefore a pre-condition that both parties agree that the matter should be referred to the Kadhi’s Court and that they must be Muslims.

2.2 Role of the High Court in the Administration of the Islamic Estate

On 11 October 2018, the High Court made an order in the matter of Salim Abdalla v Swabra Abdulla (Miscellaneous Civil Application Number 20 of 2014), which reconfirmed that in Kenya only the High Court has jurisdiction in matters of administration of a deceased's estate, including those of Muslim faith. Administration of an estate involves gathering the assets of the estate, paying the deceased's debts, managing the estate and distributing the assets.

Established as a Subordinate Court by the Constitution of Kenya, the Kadhi's Court has jurisdiction to determine questions of Muslim law relating to personal status, marriage, divorce and inheritance in proceedings in which all parties profess the Muslim religion and submit to the jurisdiction of the Kadhi's Court. Muslims are also free to choose to submit to the jurisdiction of the High Court for determination of such matters.

Where the family of a deceased Muslim requires direction on how the estate is to be divided in accordance with Sharia law, then they may apply to the Kadhi's Court. The Kadhi would make an order, based on Sharia laws of distribution, setting out the division to take place amongst the beneficiaries.

The Kadhi's Court does not have jurisdiction in the administration of a deceased's estate. Therefore once the shares to be distributed to the beneficiaries in accordance with Sharia law has been determined, the personal representatives named in the deceased's will or determined in accordance with intestacy rules (where there is no will) would need to apply to the High Court to administer the deceased's estate in accordance with the Law of Succession Act. Only the High Court has the power to issue the grant of probate/letters of administration and confirmation of grant which are required for actual distribution of the estate to the beneficiaries.

2.3 Treatment of “Illegitimate Children” under Islamic Law

Whether a non-Muslim or a child born out of wedlock can inherit from a Muslim is an issue that Kenyan courts have dealt with, and the jurisprudence on this issue is still evolving.

Previously, Kenyan courts held that, under Islamic law, (which applies to persons of the Muslim faith) children born out of wedlock were not entitled to inherit from their father’s estate This position was based on Article 24(4) of the Constitution of Kenya, which allows certain qualifications to the Bill of Rights when applying Islamic law. In one of the decisions and in justifying the rationale for this position, the High Court noted that Islam does not recognise children born out of illicit relationships as legitimate heirs.

In a recent case, the Court of Appeal held that children born out of wedlock have the right to inherit from their father under Islamic law. The Court of Appeal based its decision on Article 27 of the Constitution of Kenya, which prohibits discrimination against any person on any grounds. The Court of Appeal also considered the fact that the child in question was treated as the deceased’s own during his lifetime, and therefore the child should inherit as a dependent of his father.

It remains to be seen if there will be an appeal to the Supreme Court of Kenya to finally determine the matter.

It is advisable that one considers effective succession planning by, for example, creating a lifetime trust that would cover all persons whom one may wish to provide for. A Sharia compliant trust could be set up to provide for an illegitimate child of a Muslim man, which would safeguard the child’s financial security. Assets transferred to a trust would not be subject to succession laws as the trust assets would be held and managed by a trustee and thus would not form part of the deceased’s estate.

3.0 Conclusion

The article has dealt with the jurisprudence from Kenyan Courts on the issues of marriage and inheritance in the context of Islamic law and human rights. It discusses inter alia, the conditions and the principles governing inheritance. It further argues that although the Law of Succession Act and international human rights instruments provide for the right of testation, Kenyan law does not allow Muslims to make valid secular wills.

Disclaimer:

The content of this article is intended to provide a general legal guide to the above-discussed subject matter and therefore Specialist advice should be sought about your specific circumstances as deemed fit.