'1. The deceased, whose estate is the subject of these proceedings, died testate on 22nd June 2019 at Pandya Hospital. The cause of his death was given as left ventricular failure due to acute myocardial infarction, due to severe sepsis/metastatic prostate cancer. He was 81 years old at the time of his demise and lived at Kingorani. It is a common ground that the deceased professed the Muslim faith.
2. According to the letter of the Chief, the deceased had one dependent, Amtuzehra Esmail Abdulkarim, his widow. Before his demise, he lived at Majengo Location, Island Ward in Mombasa Sub-County, Mombasa County.
3. In his will, the deceased appointed his nephew, Mohamed Najmuddin Abdulkarim, as the sole executor and trustee of his will and the sole beneficiary of his net assets whatsoever, including, in his words, “my share in real properties, my share in our family business, my bank accounts, etc, to my said nephew Mohamed Najmuddin Abdulkarim.” The will was dated 16th January 2017 and was signed in the presence of Mr K M Karimbhai, advocate, and Ms Rose Njeri Mwathi, described in the said will as a secretary.
4. The executor petitioned this Court for the grant of probate of the written will of the deceased on 1st March 2021. Upon the gazettement of the matter, and there being no objection, the grant of probate of the written will of the deceased was issued to the executor on 21st April 2021.
5. Vide chamber Summons dated 16th November 2021, the executor/ Respondent sought to have the grant issued to him confirmed. The gram was confirmed on 25th January 2022. Mohamed Najmudin Abdulkarim was granted the whole of the estate of the deceased. The estate of the deceased comprises the following properties:-
1. ¼ undivided share in Title No Mombasa/Block XV/173;
2. ¼ undivided share in Title No Mombasa/Block XV/175;
3. ¼ undivided share in subdivision No 1135 (original /No 1132/1 CR 24317);
4. 16552 shares in BO2B Centum Investment Company Ltd;
5. 450 shares in Bamburi Cement Ltd;
6. 2,053 shares in Standard Chartered Bank of Kenya Ltd;
7. 26,307 shares in KCB Bank Ltd;
8. 6,408 shares in NIC Group Ltd;
9. 1,800 shares in Williamson Tea Ltd;
10. 28,400 shares in ABSA Bank Kenya; and
11. 1,250 shares in Kenya Adhesive Products Ltd (company C.15699)
The value of the estate is estimated at Kes.35,922,242/-
6. I must state at this point that prior to the issuance of the grant, the petition, the subject of these proceedings, was gazetted, vide Kenya Gazette Notice No 2388, which was in the 12th March 2021 edition of the Kenya Gazette Notice, at page 1206. The Notice was dated 4th March 2021. It was only upon the effluxion of time that the grant of probate of the written will of the deceased was issued to the petitioner.
7. Vide summons for Revocation of Grant dated 3rd July 2025, Noman Abdulkarim sought to have the grant issued to the executor revoked. In particular, and as far as relevant at this point, he sought a stay of distribution of the estate of the deceased and also the following orders:-
1. Spent;
2. Spent;
3. That the grant of Probate issued to Mohamed Najmuddin Abdulkarim and confirmed on 25th January 2022 be revoked on the ground that the grant was obtained fraudulently by the concealment from the Court of something material to the case and that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant; and
4. That the estate of Esmail Abdulkarim the Ebrahimjee alias Esmail Abdulkarim alias Abdulkarim Mulla Ebrahimjee (deceased) be distributed in accordance with the principles of Islamic Sharia on inheritance.
8. The grounds upon which the application was brought were that the executor did not disclose all the beneficiaries of the estate of the deceased, as being a Muslim, he had heirs/beneficiaries, other than those disclosed by the executor in his petition. He averred that the deceased, being a Muslim, could not dispose of his entire estate through a will and that there was a limitation on his testamentary capacity and, in particular, the extent to which he could bequeath his estate by way of a will. The Objector/Applicant stated that by failing to disclose all the beneficiaries, the executor misrepresented to the Honourable Court the entitlements of the beneficiaries and “misled the Honourable Court to allow a wrongful distribution of the estate. He urged that there was an imminent distribution of the shares as a meeting to distribute shares in Kenya Adhesive Products Limited was scheduled for 7th July 2025. He prayed that the application be allowed.
9. In the affidavit in support of the Summons for Revocation or Annulment of Grant of Probate, the Objector/Applicant deposed that the Executor/Respondent failed to disclose all the beneficiaries of the estate. He deposed that as a result of the said non-disclosure, he was in danger of being denied his share of his brother’s estate. The Objector/Applicant denied knowledge of the Succession proceedings and averred that he only became aware of them when the certificate of confirmation of Grant was presented to the Court by the Executor/Respondent in HCC Commercial Petition No E001 of 2025, where the latter is “asserting his rights over one of the companies which comprise the estate of the deceased herein.”
10. The Objector/Applicant attached a Notice of a meeting of directors of Kenya Adhesive Products Ltd slated for 7th July 2025 whose agenda included at item 3 “transmission of shares of Esmail Abdulkarim Ebrahimjee pursuant to the Court order issued on 25th June 2025 by the Honourable Mr. Justice J Ngaah in petition No E001 of 2025; Noman Abdulkarim v Munavarali Abdulkarim & others.” The Notice was issued by Munavarali Abdulkarim E Mulla on 30th June 2025.
11. When the application was filed, this Court stayed the transmission of shares pending hearing interpartes.
12. Upon being served the counsel for the Executor/Respondent filed an Application seeking to have the orders issued by this Court set aside, reviewed or varied and for the injunctive orders issued on 7th July 2025 vide which the Executor was restrained from distributing and or disposing off and or dealing with the estate of Esmail Abdulkarim Ebrahimjee alias Esmail Abdulkarim alias Esmail Abdulkarim alias Esmail Abdulkarim Mulla Ebrahimjee discharged.
13. The Executor /Respondent deposed in his affidavit that the application was mischievous, vexatious, and deliberately misrepresented material facts; the application had misled the Court into issuing orders contradictory to those issued by Ngaah J on 25th June 2025 in the Petition before the Commercial Court. The Objector/Applicant was accused of forum shopping.
14. The Executor/Respondent denied that the Objector/Applicant was unaware of these succession proceedings. The Executor/Respondent urged that the Objector/Applicant only came to Court once the Hon Mr. Justice Ngaah issued the order in HCCOMM Petition No E001 of 2025 and after Kenya Adhesive Products Ltd called a meeting to implement the said Court order.
15. It was further stated that the Objector/Applicant was not a beneficiary of the estate of the deceased. The Executor/Respondent urged that the deceased left a Written Will which ought to be respected. It was denied that, as a Muslim, the deceased could not freely distribute his estate through a Will. Further, the Executor/Respondent stated that the deceased did not express a desire to have his estate governed by the Islamic Sharia law. The deceased had the right under Article 40 of the Constitution to deal with his property as he wished and to bequeath it to whoever he chose. Further, he had the right under Article 32 of the Constitution to freedom of conscience, religion, thought, belief, and opinion, which included the right to make a will disposing of his properties in the manner he saw fit.
16. It was urged that the Court, under section 47 of the Law of Succession Act and section 3A and 80 of the Civil Procedure Act, could review and set aside as orders where justice demands, particularly here, there has been fraud and deliberate suppression of material facts.
17. The Executor/Respondent deposed to an affidavit sworn on 16th July 2025, vide which he averred as to the above facts and produced supporting documents.
18. The interested parties, Munavarali Abdulkarim Ebrahimjee Mulla and Najmuddin Abdulkarim, entered an appearance on 16th July 2025 and appointed the firm of Ali & Sugow Advocates LLP. The widow of the deceased appointed the firm of Anjarwalla & Khanna LLP vide Notice of Appointment dated 21st July 2025.
19. The widow of the deceased deposed to a replying affidavit sworn on 22nd July 2025. Vide the said affidavit, the widow opposed the summons for revocation of the grant. She deposed that her husband and Munavarali invested the family resources in properties in Saramala Street, Mombasa, and established the family business known as Kenya Adhesive Products Ltd. She and the deceased had no children of their own.
20. Amtuzehra accused the Objector/Applicant of having been hostile to her and the deceased, of not following the Sharia law by breaking the kinship ties, of cherry picking what aspects of the Islamic law to follow, when it suited him. In her deposition, she stated that her husband did not want to have his estate inherited by the Objector/Applicant and that it was for that reason that he left everything to his nephew. To her, the Executor/Applicant was like his son, had taken care of her and rushed her to the hospital when she fell and split her head open, and would protect and provide for her.
21. Munavarali Abdulkarim also filed a Replying Affidavit in which he responded to the two applications before the Court. Munavarali denied that the Objector/Applicant was unaware of the succession proceedings and averred that he was aware of the death of the deceased, was informed of the filing of the succession proceedings, and that he was served with his response to the application in the petition before the commercial Court in April 2025.
22. Munavarali accused the Objector/Applicant of creating conflict in the family and having conspired against the deceased, as a result of which the deceased and Amtuzehra were kicked out of the family home. He accused the Objector/Applicant of cherry-picking Islamic Sharia. He stated that the Holy Quran considers breaking family ties a major sin. He thus opposed the application.
23. The Objector/Applicant opposed the review application. He filed a replying affidavit sworn on 22nd July 2025, through which he stated that the review application was baseless, frivolous, and vexatious, and a grave abuse of the Court process. He averred that there had been a material non-disclosure of the fact that the deceased was Muslim and that he had other heirs, and that his estate ought therefore to have devolved under Islamic sharia. He denied that he had failed to disclose the existence of the commercial case. He urged that the said case was disclosed in paragraph 10 of the supporting affidavit. He deposed that he had filed the case before the Commercial Court to obtain documents.
24. The Objector/Applicant denied that there was an order from the commercial Court ordering the transfer of shares and wondered why the same had not been annexed.
25. He stated that since the deceased was a Muslim, his estate must therefore devolve under the said law. According to the said law, the widow and the three brothers (amongst whom he was one) were beneficiaries. He prayed that the application for setting aside be dismissed.
26. The application was canvassed by way of written and oral Submissions. I shall briefly set out the submissions of the parties below.
27. Submissions of the Objector/Applicant are dated 22nd July 2025. The Objector/Applicant’s counsel, Idris Ahmed, urged that the Executor/Respondent failed to disclose that the deceased was a Muslim and was therefore subject to the Islamic Sharia law.
28. It was averred that under section 76 of the Law of Succession Act, failure to disclose material information was on ground for revocation of the grant. Reliance was placed on the case of re Estate of Julius Ndubi Javan (Deceased) [2018] KEHC 8523 (KLR). He urged that all the heirs ought to have been disclosed. The fact that the deceased was a Muslim was a fact within his knowledge and should have been disclosed.
29. He accused the Executor/Respondent of deliberately misrepresenting material information. This, he urged, was because he didn’t want the Court to know he was a Muslim, for under section 2(3) of the Law of Succession Act, the devolution of the estate of a Muslim must be done under Muslim law. Under Islamic law, a testator could only bequeath at most 1/3 of his estate. Reliance was placed on the decision of the Court in re Estate of Jumaa Abdalla Munyu alias Jumaa Abdalla (Deceased) [2023] KEKC 21 (KLR).
30. He urged that since the deceased left a will, the estate of the deceased should have devolved to his three brothers and widow (with each getting 1/6 thereof) and the executor/respondent getting 1/3 as the legatee under the will. It was thus urged that the grant previously issued by this court ought to be revoked.
31. Counsel opposed the Notice of Motion dated 17th July 2025, urging that contrary to what was alleged, they made full disclosure of the suit before the Commercial Court. It was submitted that the commercial Court did not order the transfer of shares and that the court order was, in any event, in respect of one property, while the Summons was in respect of the entire estate. Counsel urged that the said motion be dismissed.
32. The submissions of the Executor/Respondent are dated 22nd July 2025. His counsel, Anjarwalla & Khanna, submitted that the application for revocation of the grant was devoid of merit and failed to meet the legal threshold for revocation of the grant under section 76 of the Law of Succession Act. It was urged that the applicable legal framework for revocation of a grant is given in section 76 of the Law of Succession Act. Since the Summons was based on section 76(b) and (c) of the said Act, it was incumbent on the Objector/applicant to prove his case and to show that the requirements therein had been met, as under sections 107 and 108 of the Evidence Act, as it was he who was asserting a legal claim.
33. The Executor/Respondent’s counsel submitted that the application was an afterthought as the Objector/Applicant only took action after he was dissatisfied with the order issued by the Commercial Court. Counsel for the Executor/respondent submitted that he could not have disclosed that the Objector was a beneficiary since he wasn’t named in the will. In his view, the deceased had deliberately chosen to exclude the Sharia law.
34. Reliance was placed on the decision of Supreme Court of Kenya in FAAF v RFM & 2 others [2025] KESC 45 (KLR) where it was held that in applying the provisions of the Bill of Rights the Court should adopt an interpretation that most favours an enforcement of a right or fundamental freedom and that provisions of religious or customary law should be interpreted through the lens of the Bill of Rights. While admitting that Article 24(4) of the Constitution permitted deviation from the Bill of Rights, it was urged that such deviation from the enjoyment of the protected rights and freedoms must meet the threshold of being strictly necessary and pass a proportionality test.
35. Counsel submitted that the Objector/Applicant was deliberately excluded due to the relationship he had with the deceased. The Executor/respondent, on the other hand, had a good relationship with the deceased. The Executor/Respondent’s counsel further submitted that the deceased had testamentary freedom, which should not be taken away.
36. Counsel for the Executor/Applicant urged that the Objector/Applicant did not make a full disclosure of the existence of the commercial case. Reliance was placed on the decision of the Court of Appeal in owners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd [1989]KECA 48 (KLR), where it was held that failure to abide by the principle of full and frank disclosure would warrant the Court to penalize the applicant by ordering payment of costs.
37. It was urged that the deceased did not want his estate to devolve under Islamic law. I was referred to the case of Mwangi v Mwangi & 4 others [2025] KECA 925 (KLR), where the testamentary freedom of Muslims to opt not to devolve their estate according to Sharia law was recognized.
38. Counsels for the Executor/Respondent contended that the Law of Succession Act must be read in a way that complies with and respects the progressive ethos in the Constitution of Kenya, 2010, since it was enacted earlier. On the basis of the decision of the Court of Appeal in SAIFUDEAN MOHAMEDALI NOORBHAI v SHEHNAZ ABDEHUSEIN ADAMJI [2011] KECA 400 (KLR), it was urged that wills could be made under Islamic law, a legal regime that was deemed as not being rigid and immutable.
39. It was urged that I dismiss the application.
40. The counsel for the Interested Parties agreed with the counsel for the Executor/Respondent. He urged that the application was actuated by ill-will and urged that the same be dismissed.
41. I have considered the two applications, the responses thereto, as well as the submissions of the parties. I must now determine if the summons for revocation and or annulment of the Grant has merit and whether I should allow it.
42. In my view, the issues for determination are
1. Whether the Executor/Respondent made full disclosure when filing the petition;
2. Whether Muslims have testamentary freedom to dispose of their estates as they wish; and
3. What orders should be issued?
43. It is not in dispute that the deceased was a Muslim. The parties hereto are also Muslims. Section 2(3) of the Law of Succession Act states that:-
“Subject to subsection (4), the provisions 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 provision, the devolution of the estate of any such person shall be governed by Muslim law.”
44. The Objector/applicant contends that the Muslim law limits the testamentary freedom of a Muslim to 1/3 of his estate. He submits that the Executor/Respondent should have disclosed that the deceased was a Muslim in his petition and should have involved the deceased''s brothers and widow, as they are beneficiaries under Islamic law.
45. I have perused the Law of Succession Act and have been unable to find support for the contention that the faith of a deceased person must be disclosed. In the circumstances, I am unable to agree that the faith of the deceased person should have been disclosed.
46. Since the deceased was a Muslim, was his testamentary freedom limited? Was the Objector/Applicant thereby his beneficiary?
47. The Court of Appeal in Mwangi vs Mwangi & 4 others [2025] KECA 925 (KLR) held that a Muslim could dispose of his estate as he wished via a Will. The Court held that:-
“We therefore find that in arriving at the finding that the deceased’s will was a nullity, the learned Judge failed to appreciate the relevant constitutional and statutory provisions and arrived at a wrong decision. We must emphasize that this is indeed one of those exceptional cases where, although the Kenyan Constitution and laws grant formal legal recognition to Islamic law in resolving family law disputes involving Muslims, the personal law that applies to the inheritance of a deceased’s estate is determined by factors other than the Islamic religious law, arising from the pluralistic nature of the legal, cultural and religious transactions entered into by the parties.”
48. The above decision is binding on this Court.
49. In this case, it would appear to me that the deceased deliberately went out of his way to ensure that this estate was devolved by way of a will to his nephew. It would further appear to me that the motivation for doing so was the broken relationship he had with his brother, the Objector, as evidenced by the fact that he (the Objector) procured the removal of the deceased from the family home, and his failure thereafter to attend the funeral of the deceased contrary to the Quranic injunction on relatives to maintain ties of kinship.
50. I do not think that it would be good form for the Objector to assert Muslim law only when it suits him and to deny or ignore it when it doesn’t.
51. I agree with the counsel for the Executor/Respondent that consistent with the decision of the Supreme Court in FAAF v RFM & 2 others [2025] KESC 45 (KLR) the provision of the Muslim law that deviate from the Bill of Rights must be interpreted in a way that meets the strictly necessary and proportionality test, ergo that the provisions of Section 2(3) of the Law Succession Act must be read with the Constitution.
52. In the said case the Supreme Court stated as follows:-
“Therefore, persuaded by the foregoing comparative analysis, and returning to Article 24(4) of the Constitution, we can only come to the inevitable conclusion that the term “extent strictly necessary” introduces the principle of proportionality as the threshold for assessing whether any derogation is necessary or justified. In essence, any departure from the right to equality must be narrowly tailored and justified by compelling circumstances. Derogations under Article 24(4) must also be confined within the bounds of absolute necessity and within the confines of the parties who profess the Muslim religion. Put differently, Article 24(4) must be read as allowing only narrowly tailored and strictly necessary departures from the equality and freedom from discrimination provisions of the Bill of Rights. It does not authorize broad indiscriminate or automatic exclusions of Muslims from constitutional equality protections, but rather permits limited exceptions and under stringent conditions in any event.”
53. I am thus not convinced that the Objector ought to have been disclosed as a beneficiary since he wasn’t in the will. That being the case, the failure to do so cannot amount to non-disclosure of material information, nor can it be a ground for revocation of the grant.
54. The effect of the foregoing is that the summons for revocation of the grant has no merit. In saying so I rely on the case of re Estate of Prisca Ong’ayo Nande (Deceased) [2020] KEHC 6553 (KLR), where the Court stated as follows:-
“8. Under section 76, a court may revoke a grant so long as the grounds listed above are disclosed, either on its own motion or on the application of a party. A grant of letters of administration may be revoked on three general grounds. The first is where the process of obtaining the grant was attended by problems. The first would be where the process was defective, either because some mandatory procedural step was omitted, or the persons applying for representation was not competent or suitable for appointment, or the deceased died testate having made a valid will and then a grant or letters of administration intestate was made instead of a grant of probate, or vice versa. It could also be that the process was marred by fraud and misrepresentation or concealment of matter, such as where some survivors are not disclosed or the applicant lies that he is a survivor when he is not, among other reasons. The second general ground is where the grant was obtained procedurally, but the administrator, thereafter, got into problems with the exercise of administration, such as where he fails to apply for confirmation of grant within the time allowed, or he fails to proceed diligently with administration, or fails to render accounts as and when required. The third general ground is where the grant has become useless and inoperative following subsequent circumstances, such as where a sole administrator dies leaving behind no administrator to carry on the exercise, or where the sole administrator loses the soundness of his mind for whatever reason or even becomes physically infirm to an extent of being unable to carry out his duties as administrator, or the sole administrator is adjudged bankrupt and, therefore, becomes unqualified to hold any office of trust.”
55. Revocation of grant is a drastic remedy that should be sparingly granted. The Court in the case of Albert Imbuga Kisigwa v Recho Kavai Kisigwa [2016] KEHC 1528 (KLR) stated as follows:-
“13. Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not a discretion to be exercised whimsically or capriciously. There must be evidence of wrongdoing for the court to invoke section 76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account the interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.”
This is not a case where the said remedy should issue.
56. In the circumstances, I dismiss the application for revocation of the grant. The interim orders currently in existence are hereby discharged.
57. Having ruled as above, it follows that the application filed by the Executor/Respondent has been allowed.
58. Given the nature of the matter, each party shall bear his, her, or their own costs.
59. It is so ordered.
Dated and signed at Mombasa, this 8th day of September 2025. Delivered virtually through Microsoft TEAMS.
'
2. According to the letter of the Chief, the deceased had one dependent, Amtuzehra Esmail Abdulkarim, his widow. Before his demise, he lived at Majengo Location, Island Ward in Mombasa Sub-County, Mombasa County.
3. In his will, the deceased appointed his nephew, Mohamed Najmuddin Abdulkarim, as the sole executor and trustee of his will and the sole beneficiary of his net assets whatsoever, including, in his words, “my share in real properties, my share in our family business, my bank accounts, etc, to my said nephew Mohamed Najmuddin Abdulkarim.” The will was dated 16th January 2017 and was signed in the presence of Mr K M Karimbhai, advocate, and Ms Rose Njeri Mwathi, described in the said will as a secretary.
4. The executor petitioned this Court for the grant of probate of the written will of the deceased on 1st March 2021. Upon the gazettement of the matter, and there being no objection, the grant of probate of the written will of the deceased was issued to the executor on 21st April 2021.
5. Vide chamber Summons dated 16th November 2021, the executor/ Respondent sought to have the grant issued to him confirmed. The gram was confirmed on 25th January 2022. Mohamed Najmudin Abdulkarim was granted the whole of the estate of the deceased. The estate of the deceased comprises the following properties:-
1. ¼ undivided share in Title No Mombasa/Block XV/173;
2. ¼ undivided share in Title No Mombasa/Block XV/175;
3. ¼ undivided share in subdivision No 1135 (original /No 1132/1 CR 24317);
4. 16552 shares in BO2B Centum Investment Company Ltd;
5. 450 shares in Bamburi Cement Ltd;
6. 2,053 shares in Standard Chartered Bank of Kenya Ltd;
7. 26,307 shares in KCB Bank Ltd;
8. 6,408 shares in NIC Group Ltd;
9. 1,800 shares in Williamson Tea Ltd;
10. 28,400 shares in ABSA Bank Kenya; and
11. 1,250 shares in Kenya Adhesive Products Ltd (company C.15699)
The value of the estate is estimated at Kes.35,922,242/-
6. I must state at this point that prior to the issuance of the grant, the petition, the subject of these proceedings, was gazetted, vide Kenya Gazette Notice No 2388, which was in the 12th March 2021 edition of the Kenya Gazette Notice, at page 1206. The Notice was dated 4th March 2021. It was only upon the effluxion of time that the grant of probate of the written will of the deceased was issued to the petitioner.
7. Vide summons for Revocation of Grant dated 3rd July 2025, Noman Abdulkarim sought to have the grant issued to the executor revoked. In particular, and as far as relevant at this point, he sought a stay of distribution of the estate of the deceased and also the following orders:-
1. Spent;
2. Spent;
3. That the grant of Probate issued to Mohamed Najmuddin Abdulkarim and confirmed on 25th January 2022 be revoked on the ground that the grant was obtained fraudulently by the concealment from the Court of something material to the case and that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant; and
4. That the estate of Esmail Abdulkarim the Ebrahimjee alias Esmail Abdulkarim alias Abdulkarim Mulla Ebrahimjee (deceased) be distributed in accordance with the principles of Islamic Sharia on inheritance.
8. The grounds upon which the application was brought were that the executor did not disclose all the beneficiaries of the estate of the deceased, as being a Muslim, he had heirs/beneficiaries, other than those disclosed by the executor in his petition. He averred that the deceased, being a Muslim, could not dispose of his entire estate through a will and that there was a limitation on his testamentary capacity and, in particular, the extent to which he could bequeath his estate by way of a will. The Objector/Applicant stated that by failing to disclose all the beneficiaries, the executor misrepresented to the Honourable Court the entitlements of the beneficiaries and “misled the Honourable Court to allow a wrongful distribution of the estate. He urged that there was an imminent distribution of the shares as a meeting to distribute shares in Kenya Adhesive Products Limited was scheduled for 7th July 2025. He prayed that the application be allowed.
9. In the affidavit in support of the Summons for Revocation or Annulment of Grant of Probate, the Objector/Applicant deposed that the Executor/Respondent failed to disclose all the beneficiaries of the estate. He deposed that as a result of the said non-disclosure, he was in danger of being denied his share of his brother’s estate. The Objector/Applicant denied knowledge of the Succession proceedings and averred that he only became aware of them when the certificate of confirmation of Grant was presented to the Court by the Executor/Respondent in HCC Commercial Petition No E001 of 2025, where the latter is “asserting his rights over one of the companies which comprise the estate of the deceased herein.”
10. The Objector/Applicant attached a Notice of a meeting of directors of Kenya Adhesive Products Ltd slated for 7th July 2025 whose agenda included at item 3 “transmission of shares of Esmail Abdulkarim Ebrahimjee pursuant to the Court order issued on 25th June 2025 by the Honourable Mr. Justice J Ngaah in petition No E001 of 2025; Noman Abdulkarim v Munavarali Abdulkarim & others.” The Notice was issued by Munavarali Abdulkarim E Mulla on 30th June 2025.
11. When the application was filed, this Court stayed the transmission of shares pending hearing interpartes.
12. Upon being served the counsel for the Executor/Respondent filed an Application seeking to have the orders issued by this Court set aside, reviewed or varied and for the injunctive orders issued on 7th July 2025 vide which the Executor was restrained from distributing and or disposing off and or dealing with the estate of Esmail Abdulkarim Ebrahimjee alias Esmail Abdulkarim alias Esmail Abdulkarim alias Esmail Abdulkarim Mulla Ebrahimjee discharged.
13. The Executor /Respondent deposed in his affidavit that the application was mischievous, vexatious, and deliberately misrepresented material facts; the application had misled the Court into issuing orders contradictory to those issued by Ngaah J on 25th June 2025 in the Petition before the Commercial Court. The Objector/Applicant was accused of forum shopping.
14. The Executor/Respondent denied that the Objector/Applicant was unaware of these succession proceedings. The Executor/Respondent urged that the Objector/Applicant only came to Court once the Hon Mr. Justice Ngaah issued the order in HCCOMM Petition No E001 of 2025 and after Kenya Adhesive Products Ltd called a meeting to implement the said Court order.
15. It was further stated that the Objector/Applicant was not a beneficiary of the estate of the deceased. The Executor/Respondent urged that the deceased left a Written Will which ought to be respected. It was denied that, as a Muslim, the deceased could not freely distribute his estate through a Will. Further, the Executor/Respondent stated that the deceased did not express a desire to have his estate governed by the Islamic Sharia law. The deceased had the right under Article 40 of the Constitution to deal with his property as he wished and to bequeath it to whoever he chose. Further, he had the right under Article 32 of the Constitution to freedom of conscience, religion, thought, belief, and opinion, which included the right to make a will disposing of his properties in the manner he saw fit.
16. It was urged that the Court, under section 47 of the Law of Succession Act and section 3A and 80 of the Civil Procedure Act, could review and set aside as orders where justice demands, particularly here, there has been fraud and deliberate suppression of material facts.
17. The Executor/Respondent deposed to an affidavit sworn on 16th July 2025, vide which he averred as to the above facts and produced supporting documents.
18. The interested parties, Munavarali Abdulkarim Ebrahimjee Mulla and Najmuddin Abdulkarim, entered an appearance on 16th July 2025 and appointed the firm of Ali & Sugow Advocates LLP. The widow of the deceased appointed the firm of Anjarwalla & Khanna LLP vide Notice of Appointment dated 21st July 2025.
19. The widow of the deceased deposed to a replying affidavit sworn on 22nd July 2025. Vide the said affidavit, the widow opposed the summons for revocation of the grant. She deposed that her husband and Munavarali invested the family resources in properties in Saramala Street, Mombasa, and established the family business known as Kenya Adhesive Products Ltd. She and the deceased had no children of their own.
20. Amtuzehra accused the Objector/Applicant of having been hostile to her and the deceased, of not following the Sharia law by breaking the kinship ties, of cherry picking what aspects of the Islamic law to follow, when it suited him. In her deposition, she stated that her husband did not want to have his estate inherited by the Objector/Applicant and that it was for that reason that he left everything to his nephew. To her, the Executor/Applicant was like his son, had taken care of her and rushed her to the hospital when she fell and split her head open, and would protect and provide for her.
21. Munavarali Abdulkarim also filed a Replying Affidavit in which he responded to the two applications before the Court. Munavarali denied that the Objector/Applicant was unaware of the succession proceedings and averred that he was aware of the death of the deceased, was informed of the filing of the succession proceedings, and that he was served with his response to the application in the petition before the commercial Court in April 2025.
22. Munavarali accused the Objector/Applicant of creating conflict in the family and having conspired against the deceased, as a result of which the deceased and Amtuzehra were kicked out of the family home. He accused the Objector/Applicant of cherry-picking Islamic Sharia. He stated that the Holy Quran considers breaking family ties a major sin. He thus opposed the application.
23. The Objector/Applicant opposed the review application. He filed a replying affidavit sworn on 22nd July 2025, through which he stated that the review application was baseless, frivolous, and vexatious, and a grave abuse of the Court process. He averred that there had been a material non-disclosure of the fact that the deceased was Muslim and that he had other heirs, and that his estate ought therefore to have devolved under Islamic sharia. He denied that he had failed to disclose the existence of the commercial case. He urged that the said case was disclosed in paragraph 10 of the supporting affidavit. He deposed that he had filed the case before the Commercial Court to obtain documents.
24. The Objector/Applicant denied that there was an order from the commercial Court ordering the transfer of shares and wondered why the same had not been annexed.
25. He stated that since the deceased was a Muslim, his estate must therefore devolve under the said law. According to the said law, the widow and the three brothers (amongst whom he was one) were beneficiaries. He prayed that the application for setting aside be dismissed.
26. The application was canvassed by way of written and oral Submissions. I shall briefly set out the submissions of the parties below.
27. Submissions of the Objector/Applicant are dated 22nd July 2025. The Objector/Applicant’s counsel, Idris Ahmed, urged that the Executor/Respondent failed to disclose that the deceased was a Muslim and was therefore subject to the Islamic Sharia law.
28. It was averred that under section 76 of the Law of Succession Act, failure to disclose material information was on ground for revocation of the grant. Reliance was placed on the case of re Estate of Julius Ndubi Javan (Deceased) [2018] KEHC 8523 (KLR). He urged that all the heirs ought to have been disclosed. The fact that the deceased was a Muslim was a fact within his knowledge and should have been disclosed.
29. He accused the Executor/Respondent of deliberately misrepresenting material information. This, he urged, was because he didn’t want the Court to know he was a Muslim, for under section 2(3) of the Law of Succession Act, the devolution of the estate of a Muslim must be done under Muslim law. Under Islamic law, a testator could only bequeath at most 1/3 of his estate. Reliance was placed on the decision of the Court in re Estate of Jumaa Abdalla Munyu alias Jumaa Abdalla (Deceased) [2023] KEKC 21 (KLR).
30. He urged that since the deceased left a will, the estate of the deceased should have devolved to his three brothers and widow (with each getting 1/6 thereof) and the executor/respondent getting 1/3 as the legatee under the will. It was thus urged that the grant previously issued by this court ought to be revoked.
31. Counsel opposed the Notice of Motion dated 17th July 2025, urging that contrary to what was alleged, they made full disclosure of the suit before the Commercial Court. It was submitted that the commercial Court did not order the transfer of shares and that the court order was, in any event, in respect of one property, while the Summons was in respect of the entire estate. Counsel urged that the said motion be dismissed.
32. The submissions of the Executor/Respondent are dated 22nd July 2025. His counsel, Anjarwalla & Khanna, submitted that the application for revocation of the grant was devoid of merit and failed to meet the legal threshold for revocation of the grant under section 76 of the Law of Succession Act. It was urged that the applicable legal framework for revocation of a grant is given in section 76 of the Law of Succession Act. Since the Summons was based on section 76(b) and (c) of the said Act, it was incumbent on the Objector/applicant to prove his case and to show that the requirements therein had been met, as under sections 107 and 108 of the Evidence Act, as it was he who was asserting a legal claim.
33. The Executor/Respondent’s counsel submitted that the application was an afterthought as the Objector/Applicant only took action after he was dissatisfied with the order issued by the Commercial Court. Counsel for the Executor/respondent submitted that he could not have disclosed that the Objector was a beneficiary since he wasn’t named in the will. In his view, the deceased had deliberately chosen to exclude the Sharia law.
34. Reliance was placed on the decision of Supreme Court of Kenya in FAAF v RFM & 2 others [2025] KESC 45 (KLR) where it was held that in applying the provisions of the Bill of Rights the Court should adopt an interpretation that most favours an enforcement of a right or fundamental freedom and that provisions of religious or customary law should be interpreted through the lens of the Bill of Rights. While admitting that Article 24(4) of the Constitution permitted deviation from the Bill of Rights, it was urged that such deviation from the enjoyment of the protected rights and freedoms must meet the threshold of being strictly necessary and pass a proportionality test.
35. Counsel submitted that the Objector/Applicant was deliberately excluded due to the relationship he had with the deceased. The Executor/respondent, on the other hand, had a good relationship with the deceased. The Executor/Respondent’s counsel further submitted that the deceased had testamentary freedom, which should not be taken away.
36. Counsel for the Executor/Applicant urged that the Objector/Applicant did not make a full disclosure of the existence of the commercial case. Reliance was placed on the decision of the Court of Appeal in owners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd [1989]KECA 48 (KLR), where it was held that failure to abide by the principle of full and frank disclosure would warrant the Court to penalize the applicant by ordering payment of costs.
37. It was urged that the deceased did not want his estate to devolve under Islamic law. I was referred to the case of Mwangi v Mwangi & 4 others [2025] KECA 925 (KLR), where the testamentary freedom of Muslims to opt not to devolve their estate according to Sharia law was recognized.
38. Counsels for the Executor/Respondent contended that the Law of Succession Act must be read in a way that complies with and respects the progressive ethos in the Constitution of Kenya, 2010, since it was enacted earlier. On the basis of the decision of the Court of Appeal in SAIFUDEAN MOHAMEDALI NOORBHAI v SHEHNAZ ABDEHUSEIN ADAMJI [2011] KECA 400 (KLR), it was urged that wills could be made under Islamic law, a legal regime that was deemed as not being rigid and immutable.
39. It was urged that I dismiss the application.
40. The counsel for the Interested Parties agreed with the counsel for the Executor/Respondent. He urged that the application was actuated by ill-will and urged that the same be dismissed.
41. I have considered the two applications, the responses thereto, as well as the submissions of the parties. I must now determine if the summons for revocation and or annulment of the Grant has merit and whether I should allow it.
42. In my view, the issues for determination are
1. Whether the Executor/Respondent made full disclosure when filing the petition;
2. Whether Muslims have testamentary freedom to dispose of their estates as they wish; and
3. What orders should be issued?
43. It is not in dispute that the deceased was a Muslim. The parties hereto are also Muslims. Section 2(3) of the Law of Succession Act states that:-
“Subject to subsection (4), the provisions 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 provision, the devolution of the estate of any such person shall be governed by Muslim law.”
44. The Objector/applicant contends that the Muslim law limits the testamentary freedom of a Muslim to 1/3 of his estate. He submits that the Executor/Respondent should have disclosed that the deceased was a Muslim in his petition and should have involved the deceased''s brothers and widow, as they are beneficiaries under Islamic law.
45. I have perused the Law of Succession Act and have been unable to find support for the contention that the faith of a deceased person must be disclosed. In the circumstances, I am unable to agree that the faith of the deceased person should have been disclosed.
46. Since the deceased was a Muslim, was his testamentary freedom limited? Was the Objector/Applicant thereby his beneficiary?
47. The Court of Appeal in Mwangi vs Mwangi & 4 others [2025] KECA 925 (KLR) held that a Muslim could dispose of his estate as he wished via a Will. The Court held that:-
“We therefore find that in arriving at the finding that the deceased’s will was a nullity, the learned Judge failed to appreciate the relevant constitutional and statutory provisions and arrived at a wrong decision. We must emphasize that this is indeed one of those exceptional cases where, although the Kenyan Constitution and laws grant formal legal recognition to Islamic law in resolving family law disputes involving Muslims, the personal law that applies to the inheritance of a deceased’s estate is determined by factors other than the Islamic religious law, arising from the pluralistic nature of the legal, cultural and religious transactions entered into by the parties.”
48. The above decision is binding on this Court.
49. In this case, it would appear to me that the deceased deliberately went out of his way to ensure that this estate was devolved by way of a will to his nephew. It would further appear to me that the motivation for doing so was the broken relationship he had with his brother, the Objector, as evidenced by the fact that he (the Objector) procured the removal of the deceased from the family home, and his failure thereafter to attend the funeral of the deceased contrary to the Quranic injunction on relatives to maintain ties of kinship.
50. I do not think that it would be good form for the Objector to assert Muslim law only when it suits him and to deny or ignore it when it doesn’t.
51. I agree with the counsel for the Executor/Respondent that consistent with the decision of the Supreme Court in FAAF v RFM & 2 others [2025] KESC 45 (KLR) the provision of the Muslim law that deviate from the Bill of Rights must be interpreted in a way that meets the strictly necessary and proportionality test, ergo that the provisions of Section 2(3) of the Law Succession Act must be read with the Constitution.
52. In the said case the Supreme Court stated as follows:-
“Therefore, persuaded by the foregoing comparative analysis, and returning to Article 24(4) of the Constitution, we can only come to the inevitable conclusion that the term “extent strictly necessary” introduces the principle of proportionality as the threshold for assessing whether any derogation is necessary or justified. In essence, any departure from the right to equality must be narrowly tailored and justified by compelling circumstances. Derogations under Article 24(4) must also be confined within the bounds of absolute necessity and within the confines of the parties who profess the Muslim religion. Put differently, Article 24(4) must be read as allowing only narrowly tailored and strictly necessary departures from the equality and freedom from discrimination provisions of the Bill of Rights. It does not authorize broad indiscriminate or automatic exclusions of Muslims from constitutional equality protections, but rather permits limited exceptions and under stringent conditions in any event.”
53. I am thus not convinced that the Objector ought to have been disclosed as a beneficiary since he wasn’t in the will. That being the case, the failure to do so cannot amount to non-disclosure of material information, nor can it be a ground for revocation of the grant.
54. The effect of the foregoing is that the summons for revocation of the grant has no merit. In saying so I rely on the case of re Estate of Prisca Ong’ayo Nande (Deceased) [2020] KEHC 6553 (KLR), where the Court stated as follows:-
“8. Under section 76, a court may revoke a grant so long as the grounds listed above are disclosed, either on its own motion or on the application of a party. A grant of letters of administration may be revoked on three general grounds. The first is where the process of obtaining the grant was attended by problems. The first would be where the process was defective, either because some mandatory procedural step was omitted, or the persons applying for representation was not competent or suitable for appointment, or the deceased died testate having made a valid will and then a grant or letters of administration intestate was made instead of a grant of probate, or vice versa. It could also be that the process was marred by fraud and misrepresentation or concealment of matter, such as where some survivors are not disclosed or the applicant lies that he is a survivor when he is not, among other reasons. The second general ground is where the grant was obtained procedurally, but the administrator, thereafter, got into problems with the exercise of administration, such as where he fails to apply for confirmation of grant within the time allowed, or he fails to proceed diligently with administration, or fails to render accounts as and when required. The third general ground is where the grant has become useless and inoperative following subsequent circumstances, such as where a sole administrator dies leaving behind no administrator to carry on the exercise, or where the sole administrator loses the soundness of his mind for whatever reason or even becomes physically infirm to an extent of being unable to carry out his duties as administrator, or the sole administrator is adjudged bankrupt and, therefore, becomes unqualified to hold any office of trust.”
55. Revocation of grant is a drastic remedy that should be sparingly granted. The Court in the case of Albert Imbuga Kisigwa v Recho Kavai Kisigwa [2016] KEHC 1528 (KLR) stated as follows:-
“13. Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not a discretion to be exercised whimsically or capriciously. There must be evidence of wrongdoing for the court to invoke section 76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account the interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.”
This is not a case where the said remedy should issue.
56. In the circumstances, I dismiss the application for revocation of the grant. The interim orders currently in existence are hereby discharged.
57. Having ruled as above, it follows that the application filed by the Executor/Respondent has been allowed.
58. Given the nature of the matter, each party shall bear his, her, or their own costs.
59. It is so ordered.
Dated and signed at Mombasa, this 8th day of September 2025. Delivered virtually through Microsoft TEAMS.
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