1. At the time this matter was filed, the world was engulfed in a great war between the Allied powers, consisting of the United States of America, the United Kingdom of Great Britain and Northern Ireland, and the Union of Soviet Socialist Republics, on the one hand, and the Axis powers of Hitler Germany, Fascist Italy, and Imperial Japan. The war ended two years later. Kenya, then, was a colony and protectorate under white-minority rule and would remain so for a further 20 years. As I write this ruling, the Republic of Kenya has been independent for 63 years. A person born when this matter was filed is now 83 years old, struggling with age-related ailments and a regular visitor to a geriatrician's surgery.
2. They say that time is a healer. That doesn’t appear to be the case in this matter. Notwithstanding the effluxion of time, the parties remain engaged in tussles that are as intractable now as they were in 1943, when the litigation commenced. The families’ members haven’t heeded the oft-given advice that litigation must end and that at some point, lawyers, too, having done their best, must go home.
3. This matter was first mentioned before me on 13th February 2023, just after I was posted. Over my three years and 2 months tour of duty in the Coastal City of Mombasa, the matter was mentioned on 30 or so occasions. The Court had the benefit of meeting the beneficiaries on 3 occasions in an attempt to unravel the contentious issues, untie the Gordian knot holding back progress, and implore the litigants to compromise so as to achieve progress and conclude the matter.
4. My efforts were not without reward. On 25th February 2024, I confirmed the grant issued to the administrators on 11th March 2024. The administrators are Ms Nasra Said Abdalla, Mr Mohamed Bwana Bwanadi, and Mr Akrim Mohamed, all of P.O. Box 90104, Mombasa. Since the decedent was a Muslim, and as his estate was to devolve to the beneficiaries in accordance with Islamic Sharia, I referred the matter to the Hon Abdiaziz Maalim Mohamed, PK (as he then was) with the direction that he determine:
a. The entitlements of each of the beneficiaries to the assets comprising the estate of the deceased;
b. Determine whether rent is payable by beneficiaries in occupation of premises belonging to the estate under Islamic law, and, if so, ascertain the amount due from each beneficiary; and
c. Determine whether any unbanked cheques were issued to the estate by Mr Mohamed Bwana Bwanadi.
5. The learned Kadhi considered the 3 questions posed by this Court. In an advisory opinion dated 22nd April 2025, the Hon Abdiaziz Maalim Mohamed, PK, found as follows:
1. On identification of beneficiaries and their entitlements
a. The learned Kadhi found that the deceased had 2 wives: Raya binti Ali and Mwanasiti binti Hemed, 8 sons (Mohamed Khator, Khamis Khator, Said Khator, Khalifa Khator, Abdulrahman Khator, Ahmed Khator, Ali Khator and Rashid Khator) and 8 daughters (Swafiya Khator, Fatma Khator, Kibibi Khator, Khadija Khator, Aisha Khator, Fatma Khator, Radhiya Khator and Mwanana Khator). He advised that under Islamic law, each wife (of the two identified) was entitled to 1/16 share of the estate (i.e. 6.25% of the estate), each son to 7/96 share of the estate (i.e. 7.29% of the estate), and each daughter to 7/192 share of the estate (i.e. 3.65% of the estate);
b. Since Khamis Khator died without heirs, the learned Kadhi proposed that his share devolves to all his 15 siblings, with males getting 9.09% share of his estate each, while females would each get 4.54% of it. Regarding the two widows' shares, he advised that they would go to their respective children and be shared between them in the ratio of 2:1 between male and female heirs, as provided in the Holy Quran, Chapter 4, verse 11;
2. On whether, under Islamic law, the beneficiaries who are in occupation of the estate properties should pay rent, the learned Kadhi found that under Islamic law, succession ought to take place immediately after payment of debt and settlement of funeral expenses. He advised that, since there was no evidence that beneficiaries had ever paid rent, under the urf doctrine of Islamic law, no rent should be demanded, as that was the family's custom; and
3. Regarding cheques issued by Mr Mohamed Bwana Bwanadi
The learned Kadhi was of the opinion that the cheques he saw were not well attested.
6. The matter was mentioned before me on 3rd July 2025. Mr Nassir prayed that the report be adopted as is. Mr SM Kimani, on the other hand, prayed that the matter be mentioned in open Court in the presence of all the beneficiaries. He averred that his clients were never heard by the Hon Kadhi. He also deprecated the report for having errors.
7. I heard the counsels for the parties on 14th October 2025 (in open Court in the presence of beneficiaries) and on 16th February 2026 when the counsels made their submissions. I will state each party's submissions below.
8. The submissions of Mr SM Kimani on behalf of the estates of Abdulrahman Khator and Khalifa Khator are dated 29th October 2025. Mr Kimani submitted that the deceased had 16 Zawil furoodh (heirs with fixed shares) and 4 wives. He urged that, since there was no evidence that any of the 4 wives observed “edat” as required by Islamic law, they should all be excluded, as including them without such evidence would be contrary to Islamic law.
9. Mr Kimani submitted that it would be unfair for an heir to occupy a fixed asset without paying mutually agreed rent. He urged that the Kuze house had been occupied by the house of Ahmed bin Khator Salim (deceased). Counsel averred that it would be unfair for the property to be occupied rent-free by any of the 16 families. He denied the existence of a custom that the Kuze house would be occupied rent-free and argued instead that Kes.15,000 per month was due. He urged that part of the land at Kanamai had been developed and was generating rental income for the families of Rashid Khator and Mohamed Bwana Bwanadi. Counsel submitted that the estate property could not be developed.
10. On the question of the cheques, Mr Kimani submitted that Mr Bwanadi admitted owing Kes. 200,000, and that what was in doubt was an additional amount of Kes. 363,000.
11. The administrator’s counsel, Messrs. Kaltuma Nassir & Co Advocates, filed written submissions dated 19th December 2025 and a list and bundle of documents dated the same date. Counsel urged that the opinion of the learned Kadhi was fair, and that the complaint made by Mr Kimani, on behalf of his client, lacked merit, and was made as a result of the fact that the opinion of the Kadhi did not go the way they had hoped. Regarding the specific issue, it was submitted as below.
12. On the question of which widows were entitled to inherit, reliance was placed on a letter dated 28th February 2003 from the Hon Ali Mwinzagu, a well-known Kadhi, now deceased, in which he stated that the deceased had 2 wives. Mr Nassir, learned counsel for the estate, urged that Mr SM Kimani’s submission that Raya binti Ali and Mwanasiti binti Hemed did not observe “edat” was not supported by any evidence. In any case, it was the responsibility of the party asserting a position to provide evidence in support of its case, failing which its assertion would fail.
13. It was urged that a meeting was held on 6th September 2025, during which the proposed distribution was discussed. Rishad Abdulrehman attended the meeting and signed the attendance sheet. During the meeting, it was resolved that the share of the late Khamis Khator would pass to his full (uterine) siblings.
14. Counsel submitted that the learned Kadhi’s finding in respect of “mayit” was correct. He urged me to be guided by it and follow it accordingly.
15. Lastly, on the issue of what should happen to the estate, it was urged that the estate shouldn’t be sold. Regarding the cheques, counsel submitted that Mr Mohamed Bwana Bwanadi was willing to refund Kes. 200,000 to the estate.
16. I have considered the report of the Hon Kadhi and the parties’ submissions. What orders should I issue regarding the mode of distribution of the estate to wind up this long-outstanding estate? The first port of call is the issues I raised, to which the Hon Kadhi proffered an advisory opinion. These are: who the beneficiaries of the estate are, what their respective shares are, whether beneficiaries in occupation of estate properties should pay rent, and the extent of Mr Mohamed Bwana Bwanadi’s indebtedness to the estate. There is also a consequential matter: what orders should issue in respect of the distribution of the estate?
17. There is no doubt that the deceased had 16 children, 8 sons and 8 daughters. It is also agreed that he contracted 4 marriages. The contestation concerns which of the wives survived Khator bin Salim and whether those who did, observed edat, as required by Islamic law.
18. Due to the period the matter has been in Court, and the poverty of contemporaneous evidence, this Court cannot establish with certainty the said issue. That notwithstanding, it would appear to me that only 2 of the 4 wives were the decedent’s wives at the time of his demise. This is based on the following considerations:
1. Firstly, in his submissions at paragraph 10, learned counsel for the objector averred that:
“The distribution of Plot No 235 of Section MMN may also be reopened, as only two of the 4 widows were allocated a plot each.”
2. Secondly, the letter written by the Hon Ali Mwinzagu, Kadhi, states that the deceased had 2 wives and then sets out their shares of the estate.
19. Why would the 2 widows have got a share and not the other two? In my view, the only logical conclusion that can be drawn from this is that this was so because the other two weren’t the deceased wives at the time of his demise. Regarding edat observance by his two widows, it seems to me that it is just to presume they did, in fact, observe “edat” rather than make the converse assumption, without evidence that they didn’t. In the circumstances, I find and hold that the heirs of the deceased are those identified by the learned Kadhi. I therefore adopt his report identifying the beneficiaries of the estate of Khator Bin Salim (deceased).
20. Mr SM Kimani contended that Hon Kadhi fell into error in relying on the Evidence Act. whereas it is true that the Evidence Act does not apply to proceedings before the Kadhi, the application of the said Act in any proceedings does not render such proceedings defective and void. The exclusion of the Evidence Act was intended to improve access to justice by simplifying trials. On the other hand, the Evidence Act is designed to make trials fair and predictable, and to result in just outcomes.
21. Regarding the share of the estate belonging to Khamis bin Khator, there is now a unanimity that his share should go to his uterine (full) siblings, and not to all the siblings. In those circumstances, the findings of the Hon Kadhi at paragraph B will be modified accordingly. Thus, the estate of Khamis bin Khator will devolve to his full siblings in accordance with Islamic law.
22. Having found that Raya binti Ali and Mwanasiti binti Hemed were the only wives of the deceased at the time of his demise, I will not interfere with the finding of the Hon Kadhi at paragraphs C and D of his advisory opinion. Consequently, I will adopt his findings in that regard.
23. Due to the amount of time that has elapsed, it is my view that to demand rent from the beneficiaries who have been in occupation of the estate properties would be oppressive. Certainly, ascertaining who has benefited from the estate over the 83-year period and who hasn’t will be a problem that may not be easy to resolve, requiring the estate to expend significant resources and ultimately be futile. The finding of the Hon Kadhi, that no payment be demanded, on the basis of the doctrine of urf, is sound in my view. Having made no prior demand for rent, beneficiaries are estopped from making such a demand now.
24. My view is that when making decisions, courts should be prudent, seek to arrive at just outcomes, and not let the perfect be the enemy of the good. While it would be ideal for each beneficiary to have his pound of flesh, the impracticalities of achieving that without expending more time and resources may call for solutions that, while not mathematically precise, all the parties can live with.
25. It is thus my view that to proceed as Mr Kimani proposes, while possibly exciting to accountants, wouldn’t lead to the resolution of this matter any time soon. I am therefore not persuaded that that is the route that this Court should follow.
26. Mr Mohamed Bwana Bwanadi accepts that he owes the estate, Kes. 200,000 on the basis of his admissions, I find and hold that the said sum is due and payable. I direct that he pay the said amount within 60 days of the date hereof. In the event of default, the said sum shall be deducted from his entitlement
27. Having:
i. Identified who the beneficiaries of the estate of Khator bin Salim (deceased) are;
ii. Stated what should happen to the estates of Khamis bin Khator, Raya binti Ali and Mwanasiti binti Hemed;
iii. Settled the question of “mayit”, that is to say, whether the beneficiaries in occupation of the estate properties should pay rent; and
iv. Established that Mohamed Bwana Bwanadi should pay the estate, Kes. 200,000. What should happen next?
28. In my view, the estate should be valued within 60 days. After the valuation, the administrators should convene a meeting of all second- and third-generation beneficiaries, or their representatives, during which the beneficiaries or their representatives should agree on how the estate is to be wound up.
29. Based on the foregoing, the orders that commend themselves to me are the following:
i. The estate shall be valued within 60 days of the date hereof;
ii. Within 30 days thereafter, the beneficiaries shall agree on how the estate shall devolve to each of them based on their respective shares under Islamic law as identified in this ruling; and
iii. If the parties are unable to agree, within the said period, then the entire estate shall be sold, wholly or in parts, by public auction, and the proceeds shall thereafter be distributed to the beneficiaries in accordance with their shares under Islamic law.
30. In my view, this will bring this long-standing matter to an end without further disputation and shall be in the interest of justice.
31. Given the nature of the matter, each of the parties shall bear their own costs.
32. It is so ordered.
Dated and signed in Nairobi this 21st day of April 2026. Delivered virtually through Microsoft TEAMS.
2. They say that time is a healer. That doesn’t appear to be the case in this matter. Notwithstanding the effluxion of time, the parties remain engaged in tussles that are as intractable now as they were in 1943, when the litigation commenced. The families’ members haven’t heeded the oft-given advice that litigation must end and that at some point, lawyers, too, having done their best, must go home.
3. This matter was first mentioned before me on 13th February 2023, just after I was posted. Over my three years and 2 months tour of duty in the Coastal City of Mombasa, the matter was mentioned on 30 or so occasions. The Court had the benefit of meeting the beneficiaries on 3 occasions in an attempt to unravel the contentious issues, untie the Gordian knot holding back progress, and implore the litigants to compromise so as to achieve progress and conclude the matter.
4. My efforts were not without reward. On 25th February 2024, I confirmed the grant issued to the administrators on 11th March 2024. The administrators are Ms Nasra Said Abdalla, Mr Mohamed Bwana Bwanadi, and Mr Akrim Mohamed, all of P.O. Box 90104, Mombasa. Since the decedent was a Muslim, and as his estate was to devolve to the beneficiaries in accordance with Islamic Sharia, I referred the matter to the Hon Abdiaziz Maalim Mohamed, PK (as he then was) with the direction that he determine:
a. The entitlements of each of the beneficiaries to the assets comprising the estate of the deceased;
b. Determine whether rent is payable by beneficiaries in occupation of premises belonging to the estate under Islamic law, and, if so, ascertain the amount due from each beneficiary; and
c. Determine whether any unbanked cheques were issued to the estate by Mr Mohamed Bwana Bwanadi.
5. The learned Kadhi considered the 3 questions posed by this Court. In an advisory opinion dated 22nd April 2025, the Hon Abdiaziz Maalim Mohamed, PK, found as follows:
1. On identification of beneficiaries and their entitlements
a. The learned Kadhi found that the deceased had 2 wives: Raya binti Ali and Mwanasiti binti Hemed, 8 sons (Mohamed Khator, Khamis Khator, Said Khator, Khalifa Khator, Abdulrahman Khator, Ahmed Khator, Ali Khator and Rashid Khator) and 8 daughters (Swafiya Khator, Fatma Khator, Kibibi Khator, Khadija Khator, Aisha Khator, Fatma Khator, Radhiya Khator and Mwanana Khator). He advised that under Islamic law, each wife (of the two identified) was entitled to 1/16 share of the estate (i.e. 6.25% of the estate), each son to 7/96 share of the estate (i.e. 7.29% of the estate), and each daughter to 7/192 share of the estate (i.e. 3.65% of the estate);
b. Since Khamis Khator died without heirs, the learned Kadhi proposed that his share devolves to all his 15 siblings, with males getting 9.09% share of his estate each, while females would each get 4.54% of it. Regarding the two widows' shares, he advised that they would go to their respective children and be shared between them in the ratio of 2:1 between male and female heirs, as provided in the Holy Quran, Chapter 4, verse 11;
2. On whether, under Islamic law, the beneficiaries who are in occupation of the estate properties should pay rent, the learned Kadhi found that under Islamic law, succession ought to take place immediately after payment of debt and settlement of funeral expenses. He advised that, since there was no evidence that beneficiaries had ever paid rent, under the urf doctrine of Islamic law, no rent should be demanded, as that was the family's custom; and
3. Regarding cheques issued by Mr Mohamed Bwana Bwanadi
The learned Kadhi was of the opinion that the cheques he saw were not well attested.
6. The matter was mentioned before me on 3rd July 2025. Mr Nassir prayed that the report be adopted as is. Mr SM Kimani, on the other hand, prayed that the matter be mentioned in open Court in the presence of all the beneficiaries. He averred that his clients were never heard by the Hon Kadhi. He also deprecated the report for having errors.
7. I heard the counsels for the parties on 14th October 2025 (in open Court in the presence of beneficiaries) and on 16th February 2026 when the counsels made their submissions. I will state each party's submissions below.
8. The submissions of Mr SM Kimani on behalf of the estates of Abdulrahman Khator and Khalifa Khator are dated 29th October 2025. Mr Kimani submitted that the deceased had 16 Zawil furoodh (heirs with fixed shares) and 4 wives. He urged that, since there was no evidence that any of the 4 wives observed “edat” as required by Islamic law, they should all be excluded, as including them without such evidence would be contrary to Islamic law.
9. Mr Kimani submitted that it would be unfair for an heir to occupy a fixed asset without paying mutually agreed rent. He urged that the Kuze house had been occupied by the house of Ahmed bin Khator Salim (deceased). Counsel averred that it would be unfair for the property to be occupied rent-free by any of the 16 families. He denied the existence of a custom that the Kuze house would be occupied rent-free and argued instead that Kes.15,000 per month was due. He urged that part of the land at Kanamai had been developed and was generating rental income for the families of Rashid Khator and Mohamed Bwana Bwanadi. Counsel submitted that the estate property could not be developed.
10. On the question of the cheques, Mr Kimani submitted that Mr Bwanadi admitted owing Kes. 200,000, and that what was in doubt was an additional amount of Kes. 363,000.
11. The administrator’s counsel, Messrs. Kaltuma Nassir & Co Advocates, filed written submissions dated 19th December 2025 and a list and bundle of documents dated the same date. Counsel urged that the opinion of the learned Kadhi was fair, and that the complaint made by Mr Kimani, on behalf of his client, lacked merit, and was made as a result of the fact that the opinion of the Kadhi did not go the way they had hoped. Regarding the specific issue, it was submitted as below.
12. On the question of which widows were entitled to inherit, reliance was placed on a letter dated 28th February 2003 from the Hon Ali Mwinzagu, a well-known Kadhi, now deceased, in which he stated that the deceased had 2 wives. Mr Nassir, learned counsel for the estate, urged that Mr SM Kimani’s submission that Raya binti Ali and Mwanasiti binti Hemed did not observe “edat” was not supported by any evidence. In any case, it was the responsibility of the party asserting a position to provide evidence in support of its case, failing which its assertion would fail.
13. It was urged that a meeting was held on 6th September 2025, during which the proposed distribution was discussed. Rishad Abdulrehman attended the meeting and signed the attendance sheet. During the meeting, it was resolved that the share of the late Khamis Khator would pass to his full (uterine) siblings.
14. Counsel submitted that the learned Kadhi’s finding in respect of “mayit” was correct. He urged me to be guided by it and follow it accordingly.
15. Lastly, on the issue of what should happen to the estate, it was urged that the estate shouldn’t be sold. Regarding the cheques, counsel submitted that Mr Mohamed Bwana Bwanadi was willing to refund Kes. 200,000 to the estate.
16. I have considered the report of the Hon Kadhi and the parties’ submissions. What orders should I issue regarding the mode of distribution of the estate to wind up this long-outstanding estate? The first port of call is the issues I raised, to which the Hon Kadhi proffered an advisory opinion. These are: who the beneficiaries of the estate are, what their respective shares are, whether beneficiaries in occupation of estate properties should pay rent, and the extent of Mr Mohamed Bwana Bwanadi’s indebtedness to the estate. There is also a consequential matter: what orders should issue in respect of the distribution of the estate?
17. There is no doubt that the deceased had 16 children, 8 sons and 8 daughters. It is also agreed that he contracted 4 marriages. The contestation concerns which of the wives survived Khator bin Salim and whether those who did, observed edat, as required by Islamic law.
18. Due to the period the matter has been in Court, and the poverty of contemporaneous evidence, this Court cannot establish with certainty the said issue. That notwithstanding, it would appear to me that only 2 of the 4 wives were the decedent’s wives at the time of his demise. This is based on the following considerations:
1. Firstly, in his submissions at paragraph 10, learned counsel for the objector averred that:
“The distribution of Plot No 235 of Section MMN may also be reopened, as only two of the 4 widows were allocated a plot each.”
2. Secondly, the letter written by the Hon Ali Mwinzagu, Kadhi, states that the deceased had 2 wives and then sets out their shares of the estate.
19. Why would the 2 widows have got a share and not the other two? In my view, the only logical conclusion that can be drawn from this is that this was so because the other two weren’t the deceased wives at the time of his demise. Regarding edat observance by his two widows, it seems to me that it is just to presume they did, in fact, observe “edat” rather than make the converse assumption, without evidence that they didn’t. In the circumstances, I find and hold that the heirs of the deceased are those identified by the learned Kadhi. I therefore adopt his report identifying the beneficiaries of the estate of Khator Bin Salim (deceased).
20. Mr SM Kimani contended that Hon Kadhi fell into error in relying on the Evidence Act. whereas it is true that the Evidence Act does not apply to proceedings before the Kadhi, the application of the said Act in any proceedings does not render such proceedings defective and void. The exclusion of the Evidence Act was intended to improve access to justice by simplifying trials. On the other hand, the Evidence Act is designed to make trials fair and predictable, and to result in just outcomes.
21. Regarding the share of the estate belonging to Khamis bin Khator, there is now a unanimity that his share should go to his uterine (full) siblings, and not to all the siblings. In those circumstances, the findings of the Hon Kadhi at paragraph B will be modified accordingly. Thus, the estate of Khamis bin Khator will devolve to his full siblings in accordance with Islamic law.
22. Having found that Raya binti Ali and Mwanasiti binti Hemed were the only wives of the deceased at the time of his demise, I will not interfere with the finding of the Hon Kadhi at paragraphs C and D of his advisory opinion. Consequently, I will adopt his findings in that regard.
23. Due to the amount of time that has elapsed, it is my view that to demand rent from the beneficiaries who have been in occupation of the estate properties would be oppressive. Certainly, ascertaining who has benefited from the estate over the 83-year period and who hasn’t will be a problem that may not be easy to resolve, requiring the estate to expend significant resources and ultimately be futile. The finding of the Hon Kadhi, that no payment be demanded, on the basis of the doctrine of urf, is sound in my view. Having made no prior demand for rent, beneficiaries are estopped from making such a demand now.
24. My view is that when making decisions, courts should be prudent, seek to arrive at just outcomes, and not let the perfect be the enemy of the good. While it would be ideal for each beneficiary to have his pound of flesh, the impracticalities of achieving that without expending more time and resources may call for solutions that, while not mathematically precise, all the parties can live with.
25. It is thus my view that to proceed as Mr Kimani proposes, while possibly exciting to accountants, wouldn’t lead to the resolution of this matter any time soon. I am therefore not persuaded that that is the route that this Court should follow.
26. Mr Mohamed Bwana Bwanadi accepts that he owes the estate, Kes. 200,000 on the basis of his admissions, I find and hold that the said sum is due and payable. I direct that he pay the said amount within 60 days of the date hereof. In the event of default, the said sum shall be deducted from his entitlement
27. Having:
i. Identified who the beneficiaries of the estate of Khator bin Salim (deceased) are;
ii. Stated what should happen to the estates of Khamis bin Khator, Raya binti Ali and Mwanasiti binti Hemed;
iii. Settled the question of “mayit”, that is to say, whether the beneficiaries in occupation of the estate properties should pay rent; and
iv. Established that Mohamed Bwana Bwanadi should pay the estate, Kes. 200,000. What should happen next?
28. In my view, the estate should be valued within 60 days. After the valuation, the administrators should convene a meeting of all second- and third-generation beneficiaries, or their representatives, during which the beneficiaries or their representatives should agree on how the estate is to be wound up.
29. Based on the foregoing, the orders that commend themselves to me are the following:
i. The estate shall be valued within 60 days of the date hereof;
ii. Within 30 days thereafter, the beneficiaries shall agree on how the estate shall devolve to each of them based on their respective shares under Islamic law as identified in this ruling; and
iii. If the parties are unable to agree, within the said period, then the entire estate shall be sold, wholly or in parts, by public auction, and the proceeds shall thereafter be distributed to the beneficiaries in accordance with their shares under Islamic law.
30. In my view, this will bring this long-standing matter to an end without further disputation and shall be in the interest of justice.
31. Given the nature of the matter, each of the parties shall bear their own costs.
32. It is so ordered.
Dated and signed in Nairobi this 21st day of April 2026. Delivered virtually through Microsoft TEAMS.