1. Kalthum Gulab Karim, whom I shall hereafter refer to as “the Appellant”, filed a Notice of Motion application dated 26th May 2022 in the court below. After considering the said application, the Hon Habib Salim Vumbi, the Principal Kadhi, on the 15th September 2022, gave, inter alia, the following directions:-
“This court recognizes the fact that the parties are on bad terms and are always in the corridors of justice. To avoid further divisions and cutting family ties, I opine that the estate properties be valued and sold, and the sale proceeds be distributed to the parties according to their shares.”
2. On the 23rd December 2022, Rukia Gulab Karim, whom I shall hereafter refer to as “the Respondent”, filed a Notice of Motion seeking the following prayers:-
1. That the Honorable court be pleased to issue an order that the Respondent/ Applicant has the priority to buy all that parcel of land known as Mombasa/Block/906 XVI, situate at King'orani, valued at Kes.20,000,000/-;
2. That the value of the whole estate is Kes.31,000,000/- and further that the shares of Farida Gulab Karim, Fatuma Gulab Karim, Nasra Gulab Karim, Zainab Gulab Karim, Mohamed Gulab Karim, and Farida Gulab Karim is Kes.18,083,333.30;
3. That this Honorable court be pleased to determine that the share of Rukia Gulab Karim, Fatuma Gulab Karim, Nasra Gulab Karim, Zeinab Gulab Karim, Mohamed Gulab Karim, and Farida Gulab Karim in the whole estate of Kes.31,000,000/- is Kes.18.083,333.30;
4. That this Honorable court be pleased to allow Rukia Gulab Karim, Fatuma Gulab Karim, Nasra Gulab Karim, Zeinab Gulab Karim, Mohamed Gulab Karim and Farida Gulab Karim to deposit Kes.1,916,666.70 to the remaining heirs being a balance to buy the house on all that the parcel of land known as Mombasa/Block/906 XVI situate at King'orani.
3. The Appellant opposed the application and stated in the replying affidavit filed on the 22nd February 2023 that given the nature of the case and the bad blood created among the heirs herein they do agree with the direction of selling the estate properties and sharing of the sale proceeds, to avoid further division and cutting of family ties, as indicated in the ruling of the court of the 15th September 2022. The Appellant contended that she had no objection to any of the heirs purchasing the estate as per the valuation report. She was, however, not agreeable to the Respondent’s proposal to buy the estate through shares, stating that to do so would be absurd and unreasonable.
4. The trial court, in its determination on the 6th Day of April 2023, indicated that the applicant had shown interest first. Therefore, the court below reasoned, she had the first priority to buy the estate. The court, consequently, granted the following orders:-
1. That the Honorable Court be pleased to grant the Respondent/ Applicant first priority to buy all that parcel of land Mombasa/Block/906 XVI situated at King'orani valued at Kes.20,000,000/-;
2. That this Honorable court be pleased to allow Rukia Gulab Karim, Fatuma Gulab Karim, Nasra Gulab Karim, Zeinab Gulab Karim, Mohamed Gulab Karim and Farida Gulab Karim to deposit Kes.1,916,666.70 to the remaining heirs being a balance to buy the house on all that the parcel of land Mombasa/Block/906 XVI situate at King'orani.
5. The court relied on the following rule
"everyone who precedes to what is permissible Is more entitled to it".
6. The above rule was supported by the following authority:-
PROPHET (S.A.W) ".......so Ukasha bin Muhsin got up and said: Pray to Allah to make me one of them? He said (S.A.W): O Allah, make him one of them. Then another got up and said: Pray to Allah, make me one of them. He said:" Ukasha has preceded you".
7. It is the latter decision that is the subject of the present appeal. The grounds of the appeal, as stated in the Memorandum of Appeal, are as hereunder:-
1. That, the learned Kadhi erred in law and facts in depriving a litigant specifically the Appellant, herein the fruits of litigation by delivery of skewed Ruling, order, and consequent precipitate action;
2. That the trial learned Kadhi erred in law and in fact in giving two conflicting orders dated 15th September 2022 and 6th April 2023 respectively;
3. That the Learned Kadhi erred both in law and in fact in proceeding to determine the application dated 23rd December 2022 in mind sight of the existing Ruling dated 15th September 2022, which promoted peace and upheld Article 45 of the Constitution of Kenya, 2010;
4. That the Learned Kadhi erred in law and facts in discharging and setting aside the directions issued under the ruling delivered on the 15th September 2022, yet the Respondent did not seek the setting aside of the Ruling, with the vast effect of sitting on an appellate jurisdiction of its own Orders, a complete illegality in the circumstances;
5. The Learned Kadhi erred in both law and facts in proceeding to determine the suit in finality, determining the issue of distribution of the estate in contravention of the initial ruling issued on the 15th September 2022, which is inconsiderate against the rules of natural justice; and
6. That the Learned Kadhi erred both in Law and facts in proceeding to determine the application in favor of the Respondent against the conflicting interests of the Appellant and Respondent with regard to the distribution of the estate among them.
8. It is clear from the court proceedings that the value of the whole estate of the deceased is Kes.31,000,000/-. It is also evident that the following six heirs, Rukia Gulab Karim, Fatuma Gulab Karim, Nasra Gulab Karim, Zeinab Gulab Karim, Mohamed Gulab Karim and Farida Gulab Karim have proposed to deposit Kes.1,916,666.70 in the Kadhi Court Account, so that they own the parcel of land known as Mombasa/Block/906 XVI situated at King'orani, leaving out four other heirs to share another property valued at Kes.11,000,000.00 and the Kes.1,916667.70 deposited in Court.
9. The court relied on the authority of a companion of the prophet (S.A.W) known as Ukasha in its ruling on the Notice of Motion dated 23rd December 2022 in the ruling delivered on the 6th April 2023, who ask for the prophet to make him one of them and the prophet said......"O Allah make him one of the”.
As well as the rule ‘everyone who precedes to what is permissible is more entitled to it”
10. Quran 45(18) reads as follows:
"Then we put you on the right Way of the religion so follow that Way and follow the desires of those who know not."
11. The trial Kadhi relied on the Islamic rule that states as follows:-
“everyone who precedes to what is permissible is more entitled to it."
12. The Learned Kadhi narrated the following Hadith in support of the above rule:
The Prophet Peace Be Upon Him "...so Ukasha bin Muhsin got up and said: Pray to Allah to make me one of them? He said: O Allah, make him one of them. Then another man got up and said: Pray to Allah to make me one of them. He said, "Ukasha has preceded you".
13.The aforementioned Hadith of Ukasha talks about the followers of Prophet Mohamed (S.A.W), seventy thousand of them will enter paradise without prior reckoning or punishment, as well as a number of benefits of the Companions of Prophet Moses. It cannot be used for worldly gains, as Ukasha asked to be among the people of paradise, and the Prophet (S.A.W), through revelation, prayed for him to be among them and not anyone else. Fortunately, that prayer of the Prophet (S.A.W) to him was among the specialties of the Prophet (S.A.W), and the Prophet Mohamed (S.A.W) was shown in a revelation that Ukasha was among the people of Paradise, the same is stated in Quran 42(51)
Allah Says:
“And it is not for any human being that Allah should speak to him except by revelation or from behind a partition or that sends a messenger [ i.e. angel] to reveal, by his permission, what he wills. Indeed, He is Most High and Wise.
Quran 53(2-6) Allah says:
"Your companion [I.e. Mohamed (S.AW)] has not strayed, nor has he erred, nor does he speak from his own inclination, it is not but a revelation revealed, taught to him by one intense in strength [I.e. Angel Gabriel].”
14. What is the authenticity of the following hadith: "Whoever reaches something permissible first, has more right to it"?
15. I did not find the aforementioned hadith with this wording, according to what I and the learned Kadhis who sat with me as assessors were able to search for in the references, but Abu Daud, Al -Tabarani, Al -Bayhaqi, and others narrated that the Messenger of Allah, may Allah bless him and grant him peace, said:-
"Whoever reaches something that no Muslim has reached before him, it is his." And in another version: “Whoever reaches water that no Muslim has reached before him, it is his.” Al-Bayhaqi said: He means by it reviving dead land. Its chain of transmission is weak, as Al-Albany and Al-Arnaut said.
16. But its meaning is correct, and it is supported by what came in Sahih Al-Bukhari on the authority of the Prophet, may God bless him and grant him peace, who said: Whoever cultivates land that does not belong to anyone, he is more entitled to it. Urwah said: Umar, may God be pleased with him, ruled this during his caliphate. And what was narrated by Al-Tirmidhi with a chain of transmission traceable to the Prophet: "Whoever revives dead land, it is his”. (Al-Albany authenticated).
17. The meaning of the rule is to establish the right by precedence in controlling public places, such as mosques, markets and squares that are used by society.
18. The rule can be proven by the following: The narration of Talha bin Zaid on the authority of Abu Abdullah on the authority of the Commander of the Faithful, peace be upon them both, who said: “The market of Muslims is like their mosque, so whoever reaches a place in the market first has more right to it until nightfall”. It indicates that being first to a place in the market makes the right obligatory for whoever reaches it first, which is what is required.
19. The practice has been established among rational people that whoever reaches a place first, that is not owned by a private owner, is more deserving and entitled to dispose of it, so the right goes to whoever comes first, and since the Shariy'ah did not intend to deter this practice, it is suitable to be a basis for understanding the rule. As the Sheikh of the Sect (may Allah have mercy on him) said: If someone reaches one of those public places first, he has more right to it than anyone else, because that is the custom of the people of the ages to do that, and no one denies it.
20. Sheikh Al-Ansari, may God have mercy on him, used the previously mentioned prophetic verse "Whoever comes first...etc." as evidence that the living area reason for owning lands, Accordingly, reviving dead lands as well as the rule in the establishment of the right, not the establishment of ownership as is stated, so it is specific to mosques, markets and squares.
21. Therefore, it is the court's finding that the authority used by the trial Kadhi was misplaced and cannot be used in this hotly contested succession matter, as all heirs have rights, and there is nothing like one preceding the other.
22. Since there are two orders and the Kadhi did not set aside orders of the 15th September 2022, despite giving other orders on the 6th April 2023, which contradict each other, the best remedy is to go the route of Maslaha. Aslaha or maslahah (public interest) is a concept in Sharia (Islamic divine law) regarded as a basis of law. It forms a part of the extended methodological principles of Islamic jurisprudence (uşūl al-figh) and denotes prohibition or permission of something, according to necessity and particular circumstances, on the basis of whether it serves the public interest of the Muslim community (ummah). In principle, maslahah is invoked particularly for issues that are not regulated by the Qur'an, the sunnah (the teachings and practices of the Islamic prophet Muhammad), or qiyas (analogy). The concept is acknowledged and employed to varying degrees depending on the jurists and schools of Islamic jurisprudence (madhhab). The application of the concept has become more important in modern times because of its increasing relevance to contemporary legal issues.
23. Maslaha was used in one sense by the Andalusian lawyer al-Shatibi (died 1388), who focused on the motivations behind the Islamic law. Regarding questions related to God, ibadat, humans should look to the Qur'an or the Sunnah for answers, but regarding the relationship between humans, mu'amalat, human should look for the best public solution. Since societies change, al Shatibi thought that the mu’amalat part of the Islamic law also needed to change.
24. Quran 4(29) Allah says:
"O you who believe, eat not each other's property by wrong means, but let there be amongst you trade and business through mutual good-will......
25. The above verse emphasizes that when in joint ownership, the essence and need of a mutual consent and agreement without unlawful pressure is paramount.
26. According to the fatwa (opinion of jurists) of most Muslim Jurists, who opined that in any property which cannot be divided, and if some heirs consent to the sale and others don't, outlined the following procedure. If it is practically possible to divide the properties between the heirs in a way that takes their legitimate share without causing any harm to the other heirs, in this regard, the properties should be divided amongst the heirs, and then if any heir wants to sell his/her share of it, they may do so. That if it is not possible to divide the properties between the heirs according to their legitimate shares, or that this is possible, but that such division will cause some harm to others, like if the value of their shares decreases by the division of the properties, then in this case, the properties should not be divided except with the consent of all the heirs. In case they do not all agree, and one of the heirs asks to sell the estate, then he has the right to do so, and it becomes an obligation to sell the estate, and then its price will be divided among all the heirs. If the other heirs refuse to sell, then the Muslim ruler (or whoever acts on his behalf) should oblige them to do so. Shaykh Ibn Taymiyyah said: "Something whose material cannot be divided and one of the heirs asks to sell it and divide its price, then it should be sold and its price should be divided (among the heirs)." In Fataawa al - Lajnah ad Daaimah,16/459 read as follows:
"If there is no Mutual consent among heirs, then Immovable property should be divided among heirs according to the shares of inheritance prescribed in Islam, with the help in experts in the evaluation of the estate.”
27. It is the finding of this court that there are two conflicting orders and that the Trial Kadhi issued, order on the 15th September 2022 which orders for the sale, and the heir sharing the proceeds of the sale, while on the 6th Day of April 2023 the trial Kadhi issued another order allowing some heirs to use their shares to acquire the property. Since they are not in agreement, the best course of action is to adhere to the orders of 15th September 2022 and for the heir to share the proceeds of the sale. The Hon Kadhis I sat with agree with this decision.
28. The upshot of the foregoing is that the appeal has merit and is hereby allowed. I set aside the orders of 6th April 2023 and order that the valid orders are those made on 15th September 2022.
29. On costs, it is my view that an award of costs will not restore the family ties but will exacerbate the bad blood. Parties will therefore bear their costs of the appeal.
30. It is so ordered.
Dated and signed at Mombasa, this 14th day of October 2025. Delivered virtually through Microsoft TEAMS.
“This court recognizes the fact that the parties are on bad terms and are always in the corridors of justice. To avoid further divisions and cutting family ties, I opine that the estate properties be valued and sold, and the sale proceeds be distributed to the parties according to their shares.”
2. On the 23rd December 2022, Rukia Gulab Karim, whom I shall hereafter refer to as “the Respondent”, filed a Notice of Motion seeking the following prayers:-
1. That the Honorable court be pleased to issue an order that the Respondent/ Applicant has the priority to buy all that parcel of land known as Mombasa/Block/906 XVI, situate at King'orani, valued at Kes.20,000,000/-;
2. That the value of the whole estate is Kes.31,000,000/- and further that the shares of Farida Gulab Karim, Fatuma Gulab Karim, Nasra Gulab Karim, Zainab Gulab Karim, Mohamed Gulab Karim, and Farida Gulab Karim is Kes.18,083,333.30;
3. That this Honorable court be pleased to determine that the share of Rukia Gulab Karim, Fatuma Gulab Karim, Nasra Gulab Karim, Zeinab Gulab Karim, Mohamed Gulab Karim, and Farida Gulab Karim in the whole estate of Kes.31,000,000/- is Kes.18.083,333.30;
4. That this Honorable court be pleased to allow Rukia Gulab Karim, Fatuma Gulab Karim, Nasra Gulab Karim, Zeinab Gulab Karim, Mohamed Gulab Karim and Farida Gulab Karim to deposit Kes.1,916,666.70 to the remaining heirs being a balance to buy the house on all that the parcel of land known as Mombasa/Block/906 XVI situate at King'orani.
3. The Appellant opposed the application and stated in the replying affidavit filed on the 22nd February 2023 that given the nature of the case and the bad blood created among the heirs herein they do agree with the direction of selling the estate properties and sharing of the sale proceeds, to avoid further division and cutting of family ties, as indicated in the ruling of the court of the 15th September 2022. The Appellant contended that she had no objection to any of the heirs purchasing the estate as per the valuation report. She was, however, not agreeable to the Respondent’s proposal to buy the estate through shares, stating that to do so would be absurd and unreasonable.
4. The trial court, in its determination on the 6th Day of April 2023, indicated that the applicant had shown interest first. Therefore, the court below reasoned, she had the first priority to buy the estate. The court, consequently, granted the following orders:-
1. That the Honorable Court be pleased to grant the Respondent/ Applicant first priority to buy all that parcel of land Mombasa/Block/906 XVI situated at King'orani valued at Kes.20,000,000/-;
2. That this Honorable court be pleased to allow Rukia Gulab Karim, Fatuma Gulab Karim, Nasra Gulab Karim, Zeinab Gulab Karim, Mohamed Gulab Karim and Farida Gulab Karim to deposit Kes.1,916,666.70 to the remaining heirs being a balance to buy the house on all that the parcel of land Mombasa/Block/906 XVI situate at King'orani.
5. The court relied on the following rule
"everyone who precedes to what is permissible Is more entitled to it".
6. The above rule was supported by the following authority:-
PROPHET (S.A.W) ".......so Ukasha bin Muhsin got up and said: Pray to Allah to make me one of them? He said (S.A.W): O Allah, make him one of them. Then another got up and said: Pray to Allah, make me one of them. He said:" Ukasha has preceded you".
7. It is the latter decision that is the subject of the present appeal. The grounds of the appeal, as stated in the Memorandum of Appeal, are as hereunder:-
1. That, the learned Kadhi erred in law and facts in depriving a litigant specifically the Appellant, herein the fruits of litigation by delivery of skewed Ruling, order, and consequent precipitate action;
2. That the trial learned Kadhi erred in law and in fact in giving two conflicting orders dated 15th September 2022 and 6th April 2023 respectively;
3. That the Learned Kadhi erred both in law and in fact in proceeding to determine the application dated 23rd December 2022 in mind sight of the existing Ruling dated 15th September 2022, which promoted peace and upheld Article 45 of the Constitution of Kenya, 2010;
4. That the Learned Kadhi erred in law and facts in discharging and setting aside the directions issued under the ruling delivered on the 15th September 2022, yet the Respondent did not seek the setting aside of the Ruling, with the vast effect of sitting on an appellate jurisdiction of its own Orders, a complete illegality in the circumstances;
5. The Learned Kadhi erred in both law and facts in proceeding to determine the suit in finality, determining the issue of distribution of the estate in contravention of the initial ruling issued on the 15th September 2022, which is inconsiderate against the rules of natural justice; and
6. That the Learned Kadhi erred both in Law and facts in proceeding to determine the application in favor of the Respondent against the conflicting interests of the Appellant and Respondent with regard to the distribution of the estate among them.
8. It is clear from the court proceedings that the value of the whole estate of the deceased is Kes.31,000,000/-. It is also evident that the following six heirs, Rukia Gulab Karim, Fatuma Gulab Karim, Nasra Gulab Karim, Zeinab Gulab Karim, Mohamed Gulab Karim and Farida Gulab Karim have proposed to deposit Kes.1,916,666.70 in the Kadhi Court Account, so that they own the parcel of land known as Mombasa/Block/906 XVI situated at King'orani, leaving out four other heirs to share another property valued at Kes.11,000,000.00 and the Kes.1,916667.70 deposited in Court.
9. The court relied on the authority of a companion of the prophet (S.A.W) known as Ukasha in its ruling on the Notice of Motion dated 23rd December 2022 in the ruling delivered on the 6th April 2023, who ask for the prophet to make him one of them and the prophet said......"O Allah make him one of the”.
As well as the rule ‘everyone who precedes to what is permissible is more entitled to it”
10. Quran 45(18) reads as follows:
"Then we put you on the right Way of the religion so follow that Way and follow the desires of those who know not."
11. The trial Kadhi relied on the Islamic rule that states as follows:-
“everyone who precedes to what is permissible is more entitled to it."
12. The Learned Kadhi narrated the following Hadith in support of the above rule:
The Prophet Peace Be Upon Him "...so Ukasha bin Muhsin got up and said: Pray to Allah to make me one of them? He said: O Allah, make him one of them. Then another man got up and said: Pray to Allah to make me one of them. He said, "Ukasha has preceded you".
13.The aforementioned Hadith of Ukasha talks about the followers of Prophet Mohamed (S.A.W), seventy thousand of them will enter paradise without prior reckoning or punishment, as well as a number of benefits of the Companions of Prophet Moses. It cannot be used for worldly gains, as Ukasha asked to be among the people of paradise, and the Prophet (S.A.W), through revelation, prayed for him to be among them and not anyone else. Fortunately, that prayer of the Prophet (S.A.W) to him was among the specialties of the Prophet (S.A.W), and the Prophet Mohamed (S.A.W) was shown in a revelation that Ukasha was among the people of Paradise, the same is stated in Quran 42(51)
Allah Says:
“And it is not for any human being that Allah should speak to him except by revelation or from behind a partition or that sends a messenger [ i.e. angel] to reveal, by his permission, what he wills. Indeed, He is Most High and Wise.
Quran 53(2-6) Allah says:
"Your companion [I.e. Mohamed (S.AW)] has not strayed, nor has he erred, nor does he speak from his own inclination, it is not but a revelation revealed, taught to him by one intense in strength [I.e. Angel Gabriel].”
14. What is the authenticity of the following hadith: "Whoever reaches something permissible first, has more right to it"?
15. I did not find the aforementioned hadith with this wording, according to what I and the learned Kadhis who sat with me as assessors were able to search for in the references, but Abu Daud, Al -Tabarani, Al -Bayhaqi, and others narrated that the Messenger of Allah, may Allah bless him and grant him peace, said:-
"Whoever reaches something that no Muslim has reached before him, it is his." And in another version: “Whoever reaches water that no Muslim has reached before him, it is his.” Al-Bayhaqi said: He means by it reviving dead land. Its chain of transmission is weak, as Al-Albany and Al-Arnaut said.
16. But its meaning is correct, and it is supported by what came in Sahih Al-Bukhari on the authority of the Prophet, may God bless him and grant him peace, who said: Whoever cultivates land that does not belong to anyone, he is more entitled to it. Urwah said: Umar, may God be pleased with him, ruled this during his caliphate. And what was narrated by Al-Tirmidhi with a chain of transmission traceable to the Prophet: "Whoever revives dead land, it is his”. (Al-Albany authenticated).
17. The meaning of the rule is to establish the right by precedence in controlling public places, such as mosques, markets and squares that are used by society.
18. The rule can be proven by the following: The narration of Talha bin Zaid on the authority of Abu Abdullah on the authority of the Commander of the Faithful, peace be upon them both, who said: “The market of Muslims is like their mosque, so whoever reaches a place in the market first has more right to it until nightfall”. It indicates that being first to a place in the market makes the right obligatory for whoever reaches it first, which is what is required.
19. The practice has been established among rational people that whoever reaches a place first, that is not owned by a private owner, is more deserving and entitled to dispose of it, so the right goes to whoever comes first, and since the Shariy'ah did not intend to deter this practice, it is suitable to be a basis for understanding the rule. As the Sheikh of the Sect (may Allah have mercy on him) said: If someone reaches one of those public places first, he has more right to it than anyone else, because that is the custom of the people of the ages to do that, and no one denies it.
20. Sheikh Al-Ansari, may God have mercy on him, used the previously mentioned prophetic verse "Whoever comes first...etc." as evidence that the living area reason for owning lands, Accordingly, reviving dead lands as well as the rule in the establishment of the right, not the establishment of ownership as is stated, so it is specific to mosques, markets and squares.
21. Therefore, it is the court's finding that the authority used by the trial Kadhi was misplaced and cannot be used in this hotly contested succession matter, as all heirs have rights, and there is nothing like one preceding the other.
22. Since there are two orders and the Kadhi did not set aside orders of the 15th September 2022, despite giving other orders on the 6th April 2023, which contradict each other, the best remedy is to go the route of Maslaha. Aslaha or maslahah (public interest) is a concept in Sharia (Islamic divine law) regarded as a basis of law. It forms a part of the extended methodological principles of Islamic jurisprudence (uşūl al-figh) and denotes prohibition or permission of something, according to necessity and particular circumstances, on the basis of whether it serves the public interest of the Muslim community (ummah). In principle, maslahah is invoked particularly for issues that are not regulated by the Qur'an, the sunnah (the teachings and practices of the Islamic prophet Muhammad), or qiyas (analogy). The concept is acknowledged and employed to varying degrees depending on the jurists and schools of Islamic jurisprudence (madhhab). The application of the concept has become more important in modern times because of its increasing relevance to contemporary legal issues.
23. Maslaha was used in one sense by the Andalusian lawyer al-Shatibi (died 1388), who focused on the motivations behind the Islamic law. Regarding questions related to God, ibadat, humans should look to the Qur'an or the Sunnah for answers, but regarding the relationship between humans, mu'amalat, human should look for the best public solution. Since societies change, al Shatibi thought that the mu’amalat part of the Islamic law also needed to change.
24. Quran 4(29) Allah says:
"O you who believe, eat not each other's property by wrong means, but let there be amongst you trade and business through mutual good-will......
25. The above verse emphasizes that when in joint ownership, the essence and need of a mutual consent and agreement without unlawful pressure is paramount.
26. According to the fatwa (opinion of jurists) of most Muslim Jurists, who opined that in any property which cannot be divided, and if some heirs consent to the sale and others don't, outlined the following procedure. If it is practically possible to divide the properties between the heirs in a way that takes their legitimate share without causing any harm to the other heirs, in this regard, the properties should be divided amongst the heirs, and then if any heir wants to sell his/her share of it, they may do so. That if it is not possible to divide the properties between the heirs according to their legitimate shares, or that this is possible, but that such division will cause some harm to others, like if the value of their shares decreases by the division of the properties, then in this case, the properties should not be divided except with the consent of all the heirs. In case they do not all agree, and one of the heirs asks to sell the estate, then he has the right to do so, and it becomes an obligation to sell the estate, and then its price will be divided among all the heirs. If the other heirs refuse to sell, then the Muslim ruler (or whoever acts on his behalf) should oblige them to do so. Shaykh Ibn Taymiyyah said: "Something whose material cannot be divided and one of the heirs asks to sell it and divide its price, then it should be sold and its price should be divided (among the heirs)." In Fataawa al - Lajnah ad Daaimah,16/459 read as follows:
"If there is no Mutual consent among heirs, then Immovable property should be divided among heirs according to the shares of inheritance prescribed in Islam, with the help in experts in the evaluation of the estate.”
27. It is the finding of this court that there are two conflicting orders and that the Trial Kadhi issued, order on the 15th September 2022 which orders for the sale, and the heir sharing the proceeds of the sale, while on the 6th Day of April 2023 the trial Kadhi issued another order allowing some heirs to use their shares to acquire the property. Since they are not in agreement, the best course of action is to adhere to the orders of 15th September 2022 and for the heir to share the proceeds of the sale. The Hon Kadhis I sat with agree with this decision.
28. The upshot of the foregoing is that the appeal has merit and is hereby allowed. I set aside the orders of 6th April 2023 and order that the valid orders are those made on 15th September 2022.
29. On costs, it is my view that an award of costs will not restore the family ties but will exacerbate the bad blood. Parties will therefore bear their costs of the appeal.
30. It is so ordered.
Dated and signed at Mombasa, this 14th day of October 2025. Delivered virtually through Microsoft TEAMS.