1. The late Ahmed Mohamed Nasib died on 5th October 1987. His wife, who was also his cousin, died a year later, on 4th October 1988. They were not survived by any child or parents. Their respective parents, Mohamed Nasib and Said Nasib, were brothers.
2. The Respondent filed succession cause for orders for that:-
1. Determination of the heirs of Ahmed Mohamed Nasib and Aisha Said Nasib; and
2. The share of Aisha Said Nasib from Ahmed Mohamed Nasib's estate being her widow and his one cousin.
The estate consisted of four properties in Mombasa North.
3. The Kadhi Court, upon hearing parties and witnesses, entered judgment delivered on 9th December 2020. The decree was not filed in the Record of Appeal but is available in the court record. The Honourable Chief Kadhi (retired) Hammad M. Kassim made the following orders:-
1. Had the portion holder been any other than a wife or husband, then the residue would have been returned to him/her through radd. Otherwise, since the portion holder is a widow, there will be no radd, and the residue will go to dhawilarham.
2. Aisha, being a widow, is also a first cousin of the deceased. There is no other relative nearer to the late Ahmed Mohamed Nasib than the widow. Aisha will also qualify to inherit the residue. She is entitled to the entire estate of Ahmed Mohamed Nasib.
3. Aisha Nasib had no portion holder or asaba heir. She can only be inherited by Dhawilarham.
4. The defendant and Aisha (deceased herein) had great-grandmothers who were sisters. However, his claim to be ibnul amm liumm to the late Aisha Said Nasib is far-fetched and incorrect.
5. The closest relatives to Aisha's father are sons and daughters of his brothers and sisters who include children of Shaibu wa Khamis, Mwanamzuri wa Hamisi and Kashi wa Hamisi. These are entitled to 2/3 of the estate.
6. Abdulkadir Hassan Abdulaziz, Mohamed Hassan Abdulaziz, Rukia Hassan Abdulaziz, Amina Hassan Abdulaziz and the late Aisha Hassan Abdulaziz represent the side of the mother of the deceased and will take 1/3 of the estate.
7. Plot Nos. 842/ I/ MN and 966/I/ MN belong to the estate of Ahmed Mohamed Nasib.
8. Plot No. 258/II/MN was jointly owned by Ahmed Mohamed Nasib and his wife, Aisha Said Nasib. Upon his death, Aisha became the sole proprietor of this property;
9. Property Plot No. 741/ I/ MN is Wakf property leased till 2079. It cannot be inherited.
10. The estate be inherited by beneficiaries hereby mentioned, each male getting twice as much as a female.
4. Being dissatisfied with the judgment, the Appellant filed this appeal on the grounds that:-
1. THAT the Honourable Chief Kadhi erred in law and fact in his finding that there was no appeal preferred by the appellant in respect of his previous ruling on the issue of res judicata given that such an appeal had indeed been preferred by the appellant being Mombasa HCCA No. 31 of 2004; Sheikh Ali Mwinzagu vs Abdulkadir Hassan Abdulaziz;
2. THAT the Honourable Chief Kadhi misdirected himself by holding that the principle of Radd was relevant and applicable in favour of Aisha Said Nasib in respect of the estate of Ahmed Mohamed Nasib;
3. THAT the Honourable Chief Kadhi erred in law and fact in failing to find that the Appellant, together with his brothers, sisters and cousins, were entitled to inherit the subject estates as dhularham by virtue of sharing a common ancestor, namely Mwamide Omar, who is/was the mother of Mwanajaa Atekelo, Mwanate Atekelo and Hamisi Muhuzi
5. The Respondent filed a Memorandum of Cross-Appeal on the following grounds:-
1. The learned Chief Kadhi erred both in fact and /or in law in finding that the children of Shaibu wa Khamis, Mwamanmzuri wa Hamisi and Kashi wa Hamisi were entitled to inherit the estate of Aisha said Nasib;
2. The learned Chief Kadhi erred both in fact and/or in law in finding that the children of Shaibu wa Khamis, Mwanamzuri Hamisi and Kashi wa Hamis were entitled to two-thirds of the estate of Aisha Said Nasib and the respondents and his siblings to one-third of the estate;
3. The learned Chief Kadhi erred in law in failing to award the respondent costs of the proceedings before him.
6. I have perused the Record of Appeal as well as the submissions and authorities filed in court.
7. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.
8. In the case of Mbogo and Another vs. Shah [1968] EA 93 the Court stated:
“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”
9. The duty of the first appellate Court was settled by Clement De Lestang, VP, Duffus and Law JJA, in the locus classicus case of Selle & another Vs Associated Motor Boat Company and Others [1968]EA 123, where they stated as follows:-
“.. this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”
10. The Court is to bear in in mind that it had neither seen nor heard the witnesses. It is the trial court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them.
11. Further, in the case of Peters vs Sunday Post Limited [1958] EA 424, the court therein rendered itself as follows:-
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different.”
12. The issues for determination in this appeal are:
1. Whether or not the matter was res judicata;
2. The application of the radd principle;
3. Whether the appellant is entitled to inherit the deceased through the principle of radd being distant kindred dhawilarham.
4. Whether or not the mode of distribution of the estate of Aisha Said Nasib is correct.
Was the matter before the trial Court res judicata?
13. The issue was raised at the trial. In the ruling delivered by the trial court, it was found that the matter was not res judicata. That ruling was not appealed against at trial, the hearing proceeded, and judgment was entered. Be that as it may, in contention was that a ruling delivered by Chief Kadhi (as he then was) Hon. Nahdy certified on 6" February 1998 on page 104 of the record of appeal. An examination of the ruling does not show the parties to the case and whether the respondent had been aware of, served with a petition and/or participated in the proceedings in the civil suit No. 213 of 1995. The rules of natural justice as stated in the Latin maxim audi alterem partem, demand notice to and participation of a party who may be prejudiced by any orders made against him/her. Even if it had been properly filed, it cannot be regarded as a suit between the same parties and, therefore, fails the test of res judicata. This limb of the appeal fails.
Radd Principle
14. In the ‘The Mukhtasar Al Quduri -The Manual of Islamic Law According to the Hanafi School” by Imam Abu'l Husayn Ahmad ibn Muhammad ibn Ahmad ibn Ja'far ibn Hamdan defines “radd” as:-
‘Where there are no residuary heirs, the excess after the fixed shares of those who have shares (dhawu's siham) is redistributed among them according to their shares, except to the spouses.’
15. The Kuwait Islamic Jurisprudence Encyclopedia Vol 22, at page 178 defines Radd as 'redistribution of the excess of Qur'anic sharers' shares to their proportionate and specific shares, provided there is no other heir. This definition concurs with Al Sabuny in his Al Mawarith fil Shari'ah al Islamiyyah 'Inheritance in Islamic law' at page 123- 125. He adds that it applies to eight categories of Qur'anic sharers: daughter, son's daughter, full sister, paternal sister, mother, true grandmother, uterine sister and uterine brother.
16. The principle of radd increases the share of the Qur'anic sharers or dhawil siham or portion holders by returning to them the excess of the estate after having taken their stipulated and specific shares according to the provisions of the Quran, there being no other heir entitled to inherit the deceased. In this case, the trial court was clear in the judgment that Aisha Said Nasib was not entitled to inherit the residue of her husband's estate through radd. The Hon. Chief Kadhi (as he then was) found she was entitled through nasab or blood relationship with the deceased by being the closest heir to him. He stated thus:
'otherwise since the portion holder is a widow, there will be no radd and the residue will go to dhawilarham.'
17. The Islamic law of inheritance allows persons to inherit through multiple ways. Sheikh Muhammad Ali Al Sabuny in 'Inheritance in Islamic law' at page 77 - 78 states:
'a person may inherit a deceased through two different ways, if one is through Qur'anic shares and the other through agnation or residuary or one through Qur'anic shares and the other through kindred Rahim. Examples of these are as follows:
1. Deceased survived by grandfather, uterine brother, and husband who is an ibn amm shaqiq full paternal uncles' son. The grandfather gets a sixth, the husband gets half through Qur'anic shares being a husband and the remainder because he is her full paternal uncles' Son;
2. A husband is survived by two bint khala uterine aunt's daughters one of whom is his wife. The wife will get a fourth, her Qur'anic share and share the remainder with her sister, the other bint khala because of Rahim or kindred relationship;
3. A man survived by a full sister and wife who is also an ibnat ammat, a first cousin -paternal aunt's daughter. The widow inherits a fourth as a Qur'anic sharer and the full sister a half through Qur'anic share and the remainder through radd. The wife does not inherit through kindred relationship due to the existence of a Qur'anic sharer dhawil siham.
18. It is a misapprehension of the law that a person cannot inherit through 'two caps' as argued by the appellant through his counsel. The trial court did not err in considering whether the widow could also be entitled to inherit the remainder of the estate of her late husband.
Who is the rightful legal heir of the remainder of the estate of Ahmed Mohamed Nasib?
19. The general principle of distribution of estates under Islamic law is the assignment of shares to the Qur'anic heirs (sharers) and the remainder to the residuaries, the closest male relatives. The degree of kinship and nearness to the deceased is the key basis to the determination of those entitled to inherit.
20. The deceased in this matter was not survived by any child, siblings or uncles. Nasib Ali had three children: Mohamed, Abdulrahman and Said Mohamed Nasib. Abdulrahman had no child. Mohamed had one child, a son Ahmed Mohamed Nasib. Said Nasib had three daughters: Aisha, Maryam and Halima Said Nasib, Ahmed Mohamed Nasib married his first cousin Aisha Said Nasib. She is Ahmed Mohamed Nasib's bint amm, a full uncle's daughter. An uncle's daughter is neither a sharer nor a residuary. She is distant kindred on the deceased's paternal side and, therefore, the closest kindred relation of the deceased. She is entitled to the remainder of his estate. I do not agree that the trial court erred in assigning the remainder and, consequently, the entire estate to her.
The heirs of Aisha Said Nasib
21. Aisha Said Nasib had no child. Her sisters Maryam and Halima predeceased her and had no children. His uncle Abdulrahman Nasib predeceased her and left no children.
22. Her mother, Bichuba Abdulaziz, had two siblings: Mwanabarani Abdulaziz and Hassan Abdulaziz. Mwanabarani was not survived by any child. Hassan Abdulaziz was survived by Swaleh, Mohamed Saada, Rukia, Amina and Abdulkadir Hassan Abdulaziz. Swaleh and Rukia are also deceased. Abdulkadir is the respondent in this appeal. He relates to the deceased through her mother's sibling, abnau' wa banatul Khaal.
23. Mwanajaa Atekelo and Mwanate Atekelo were sisters. Mwanajaa had four children: Nyanya, Shaibu, Mwanamzuri and Kashi Hamisi. Nyanya Hamisi's children are: Said Ali and Abdulrahman Nasib Ali. Said Ali had one daughter Aisha Said Ali, the deceased herein. Shaibu Hamisi had one child, Khamisi Shaibu. Mwanamzuri Hamisi's children are: Kabibi Ali and Juma Ali. Kashi Hamisi's children are: Mwanate Mwidau and Abdalla Mwidau. Shaibu, Mwanamzuri and Kashi Hamisi are deceased's father's uncle's children abna' wa banat khal al-abb. Mwanate Atekelo was survived by Mwinzagu who was survived by Mohamed who was survived by Ali Mohamed Mwinzagu, the Appellant in this appeal. He is related to the deceased through his great-grandmother.
24. The Appellant does not have a direct link to the deceased. He relates to her through Mwanate Atekelo, who is a great-grandmother of the deceased. Mwanajaa Atekelo, whose descendants had her own children who also had children who are surviving. They are closer to the deceased than the Appellant. The Appellant is a remoter kindred relative of the deceased. He is excluded from inheriting the late Aisha Said Ali by the presence of her closer and stronger direct relations on her mother and father's side. This is true whether madh'habul ahlul Tanzil or Madh'habul Ahlul Qaraba is applied. He is not entitled to inherit her in the presence of closer kindred.
25. The deceased was not survived by any sharer or residuary. The principle of radd does not apply. The estate devolves to distant kindred Dhawil arham under Q.8.75.
"and those who believed after [the initial emigration] and emigrated and fought with you -they are of you. But those of [blood] relationship are more entitled [to inheritance] in the decree of Allah. Indeed, Allah is knowing of all things.”
26. In 'Muslim Law of Marriage and Succession in India' S. A. Kader, Eastern Law House, at page 63 states:
"as already pointed out, if there are no sharer or residuary, the distant kindred inherit the estate of the deceased. There is one exception. If there are no residuary and the husband or wife is the only sharer, he or she takes his or her Qur'anic share and the residue go to the distant kindred, if any.'
27. Distant kindred are found in four categories. Sh. Muhammad Ali Al Sabuny in "inheritance in Islamic law' at page 189 - 190 lists the categories of distant kindred as:
i. Descendants of deceased -Daughter's and son's daughter's children
ii. Ascendants of deceased - False grandparents.
iii. Descendants of parents (children of siblings)
iv. Descendants of grandparents (uncles children).
28. ‘The Muslim Law of inheritance' compiled from original Arabic text of 'Sirajiyyah, Qur'anic verses and Hadis and their English translation by Mohammedullah ibn S. Jung, Kitab Bhavan, at page 40- 41 gives the list of distant kindred and their priority in inheritance as follows:
‘List of distant kindred:
1. Descendants of the deceased
a. Daughters' children and their descendants
b. Children of son's daughters and their descendants
2. Ascendants of the deceased
a. False grandfathers
b. False grandmothers
3. Descendants of parents
a. Full brothers' daughter and their descendant
b. Consanguine brothers' daughters and their descendants
c. Uterine brothers' children and their descendants
d. Daughters of consanguine brothers' sons and their descendants
e. Sisters) whether full or consanguine or uterine) children and their descendants
4. Descendants of Immediate grandparents (true of false)
a. Paternal aunts, father's full sisters and mothers full brothers and sisters i.e maternal uncles and aunts.
b. Father's consanguine sister's and mother's consanguine brothers and sisters
c. Paternal aunts' descendants, maternal uncles, and aunts' descendants
d. Uterine brothers and sisters of father and mother
e. Full paternal uncles' daughters and their descendants
f. Consanguine paternal uncles' daughters and their descendants
g. Uterine paternal uncles' daughters and their descendants
h. Full paternal uncles' sons' daughters and their descendants
i. Consanguine paternal uncles' sons' daughters and their descendants
j. Descendants of remoter ancestors true or false
29. Sh. Muhammad Ali Al Sabuny in "Inheritance under Islamic law' at pages 177 -193 discusses distribution of estates among the distant kindred. He notes that there are three opinions among Muslim jurists in its distribution:
i. Distribution of estate equally among the distant kindred without differentiation between the near and far, male or female among the distant kindred. This opinion is referred to as Madh'hab ahlul rrahim. He opined this opinion is not based on any authority or logic and is not considered.
ii. Assignment of the descendants of the distant kindred the share of their descendants. The distant kindred take the shares of his / her ancestor, and the one whose ancestor is excluded, equally becomes excluded. This opinion is referred to as madh'hab ahlul tanzil. It is the opinion of Imam Ahmad ibn Hanbal and contemporary Shafi' and Maliki jurists.
iii. Giving the distant kindred the treatment of residuary heirs by giving due consideration of strength of proximity to and blood relationship with the deceased, the male getting twice the share of the female as with residuaries, and nearer excluding the distant. This opinion is referred to as Madh'hab ahul Qaraba. This is the opinion of Ali bin Abi Talib (R.A.) adopted by the Hanafi school of jurisprudence.
30. Sheikh AI Sabuny supported madh hab ahulul Tanzil over Ahlul Qaraba as it is most widespread among the Muslim countries and easier to apply, references distant kindred to their original primary heirs whose shares are ascertained and well known. It is noted, the deceased and parties herein are of the Shafi school of jurisprudence and therefore Madh'habul tanzil applies to them.
31. Applying madh'habul tanzil, the descendants take the share of their ancestors, the children of Hassan Abdulaziz are abnaul khal, they take share and position of the mother (1/3), while children of Said Ali's (Aisha's father) uncles: Shaibu, Mwanamzuri and Kashi are abnau' and banat Khal al-abb, they take the share and position of father (2/3). After distributing the shares to the respective group of heirs, the beneficiaries therein share their part of the estate equally without differentiation between male and female.
32. The rationale of the trial Kadhi of assigning 2/3 to children of Nyanya’s grandchildren and 1/3 to children of Bichuba's children was incorrect. Distant kindred, in the same degree, share the estate equally irrespective of gender.
33. The male getting twice the share of the female applies in Madh hab ahlul Qaraba. In Madh'hab ahlul Tanzil, the surviving heirs after getting the share proportionate to that of their ancestors, share the estate equally only among the heirs of their particular group; the groups representing different ancestors may get different shares although they are all distant kindred.
34. Children of Hassan Abdulaziz take the position of the mother (1/3), while children of Said Ali's (Aisha's father) uncles, Shaibu, Mwanamzuri and Kashi, take the position of the father (2/3). The ratio, therefore, remains.
35. The appeal fails as does the cross-appeal, save that the heirs of the children of Hassan Abdulaziz, male and female, will share their share of the estate equally among them and as will the children of Shaibu, Mwanamzuri and Kashi Hamisi.
36. As this is a family appeal, each party will bear its own costs.
37. It is so ordered.
Dated and signed at Mombasa this 18th day of January 2024. Delivered virtually via Microsoft TEAMS.
2. The Respondent filed succession cause for orders for that:-
1. Determination of the heirs of Ahmed Mohamed Nasib and Aisha Said Nasib; and
2. The share of Aisha Said Nasib from Ahmed Mohamed Nasib's estate being her widow and his one cousin.
The estate consisted of four properties in Mombasa North.
3. The Kadhi Court, upon hearing parties and witnesses, entered judgment delivered on 9th December 2020. The decree was not filed in the Record of Appeal but is available in the court record. The Honourable Chief Kadhi (retired) Hammad M. Kassim made the following orders:-
1. Had the portion holder been any other than a wife or husband, then the residue would have been returned to him/her through radd. Otherwise, since the portion holder is a widow, there will be no radd, and the residue will go to dhawilarham.
2. Aisha, being a widow, is also a first cousin of the deceased. There is no other relative nearer to the late Ahmed Mohamed Nasib than the widow. Aisha will also qualify to inherit the residue. She is entitled to the entire estate of Ahmed Mohamed Nasib.
3. Aisha Nasib had no portion holder or asaba heir. She can only be inherited by Dhawilarham.
4. The defendant and Aisha (deceased herein) had great-grandmothers who were sisters. However, his claim to be ibnul amm liumm to the late Aisha Said Nasib is far-fetched and incorrect.
5. The closest relatives to Aisha's father are sons and daughters of his brothers and sisters who include children of Shaibu wa Khamis, Mwanamzuri wa Hamisi and Kashi wa Hamisi. These are entitled to 2/3 of the estate.
6. Abdulkadir Hassan Abdulaziz, Mohamed Hassan Abdulaziz, Rukia Hassan Abdulaziz, Amina Hassan Abdulaziz and the late Aisha Hassan Abdulaziz represent the side of the mother of the deceased and will take 1/3 of the estate.
7. Plot Nos. 842/ I/ MN and 966/I/ MN belong to the estate of Ahmed Mohamed Nasib.
8. Plot No. 258/II/MN was jointly owned by Ahmed Mohamed Nasib and his wife, Aisha Said Nasib. Upon his death, Aisha became the sole proprietor of this property;
9. Property Plot No. 741/ I/ MN is Wakf property leased till 2079. It cannot be inherited.
10. The estate be inherited by beneficiaries hereby mentioned, each male getting twice as much as a female.
4. Being dissatisfied with the judgment, the Appellant filed this appeal on the grounds that:-
1. THAT the Honourable Chief Kadhi erred in law and fact in his finding that there was no appeal preferred by the appellant in respect of his previous ruling on the issue of res judicata given that such an appeal had indeed been preferred by the appellant being Mombasa HCCA No. 31 of 2004; Sheikh Ali Mwinzagu vs Abdulkadir Hassan Abdulaziz;
2. THAT the Honourable Chief Kadhi misdirected himself by holding that the principle of Radd was relevant and applicable in favour of Aisha Said Nasib in respect of the estate of Ahmed Mohamed Nasib;
3. THAT the Honourable Chief Kadhi erred in law and fact in failing to find that the Appellant, together with his brothers, sisters and cousins, were entitled to inherit the subject estates as dhularham by virtue of sharing a common ancestor, namely Mwamide Omar, who is/was the mother of Mwanajaa Atekelo, Mwanate Atekelo and Hamisi Muhuzi
5. The Respondent filed a Memorandum of Cross-Appeal on the following grounds:-
1. The learned Chief Kadhi erred both in fact and /or in law in finding that the children of Shaibu wa Khamis, Mwamanmzuri wa Hamisi and Kashi wa Hamisi were entitled to inherit the estate of Aisha said Nasib;
2. The learned Chief Kadhi erred both in fact and/or in law in finding that the children of Shaibu wa Khamis, Mwanamzuri Hamisi and Kashi wa Hamis were entitled to two-thirds of the estate of Aisha Said Nasib and the respondents and his siblings to one-third of the estate;
3. The learned Chief Kadhi erred in law in failing to award the respondent costs of the proceedings before him.
6. I have perused the Record of Appeal as well as the submissions and authorities filed in court.
7. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.
8. In the case of Mbogo and Another vs. Shah [1968] EA 93 the Court stated:
“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”
9. The duty of the first appellate Court was settled by Clement De Lestang, VP, Duffus and Law JJA, in the locus classicus case of Selle & another Vs Associated Motor Boat Company and Others [1968]EA 123, where they stated as follows:-
“.. this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”
10. The Court is to bear in in mind that it had neither seen nor heard the witnesses. It is the trial court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them.
11. Further, in the case of Peters vs Sunday Post Limited [1958] EA 424, the court therein rendered itself as follows:-
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different.”
12. The issues for determination in this appeal are:
1. Whether or not the matter was res judicata;
2. The application of the radd principle;
3. Whether the appellant is entitled to inherit the deceased through the principle of radd being distant kindred dhawilarham.
4. Whether or not the mode of distribution of the estate of Aisha Said Nasib is correct.
Was the matter before the trial Court res judicata?
13. The issue was raised at the trial. In the ruling delivered by the trial court, it was found that the matter was not res judicata. That ruling was not appealed against at trial, the hearing proceeded, and judgment was entered. Be that as it may, in contention was that a ruling delivered by Chief Kadhi (as he then was) Hon. Nahdy certified on 6" February 1998 on page 104 of the record of appeal. An examination of the ruling does not show the parties to the case and whether the respondent had been aware of, served with a petition and/or participated in the proceedings in the civil suit No. 213 of 1995. The rules of natural justice as stated in the Latin maxim audi alterem partem, demand notice to and participation of a party who may be prejudiced by any orders made against him/her. Even if it had been properly filed, it cannot be regarded as a suit between the same parties and, therefore, fails the test of res judicata. This limb of the appeal fails.
Radd Principle
14. In the ‘The Mukhtasar Al Quduri -The Manual of Islamic Law According to the Hanafi School” by Imam Abu'l Husayn Ahmad ibn Muhammad ibn Ahmad ibn Ja'far ibn Hamdan defines “radd” as:-
‘Where there are no residuary heirs, the excess after the fixed shares of those who have shares (dhawu's siham) is redistributed among them according to their shares, except to the spouses.’
15. The Kuwait Islamic Jurisprudence Encyclopedia Vol 22, at page 178 defines Radd as 'redistribution of the excess of Qur'anic sharers' shares to their proportionate and specific shares, provided there is no other heir. This definition concurs with Al Sabuny in his Al Mawarith fil Shari'ah al Islamiyyah 'Inheritance in Islamic law' at page 123- 125. He adds that it applies to eight categories of Qur'anic sharers: daughter, son's daughter, full sister, paternal sister, mother, true grandmother, uterine sister and uterine brother.
16. The principle of radd increases the share of the Qur'anic sharers or dhawil siham or portion holders by returning to them the excess of the estate after having taken their stipulated and specific shares according to the provisions of the Quran, there being no other heir entitled to inherit the deceased. In this case, the trial court was clear in the judgment that Aisha Said Nasib was not entitled to inherit the residue of her husband's estate through radd. The Hon. Chief Kadhi (as he then was) found she was entitled through nasab or blood relationship with the deceased by being the closest heir to him. He stated thus:
'otherwise since the portion holder is a widow, there will be no radd and the residue will go to dhawilarham.'
17. The Islamic law of inheritance allows persons to inherit through multiple ways. Sheikh Muhammad Ali Al Sabuny in 'Inheritance in Islamic law' at page 77 - 78 states:
'a person may inherit a deceased through two different ways, if one is through Qur'anic shares and the other through agnation or residuary or one through Qur'anic shares and the other through kindred Rahim. Examples of these are as follows:
1. Deceased survived by grandfather, uterine brother, and husband who is an ibn amm shaqiq full paternal uncles' son. The grandfather gets a sixth, the husband gets half through Qur'anic shares being a husband and the remainder because he is her full paternal uncles' Son;
2. A husband is survived by two bint khala uterine aunt's daughters one of whom is his wife. The wife will get a fourth, her Qur'anic share and share the remainder with her sister, the other bint khala because of Rahim or kindred relationship;
3. A man survived by a full sister and wife who is also an ibnat ammat, a first cousin -paternal aunt's daughter. The widow inherits a fourth as a Qur'anic sharer and the full sister a half through Qur'anic share and the remainder through radd. The wife does not inherit through kindred relationship due to the existence of a Qur'anic sharer dhawil siham.
18. It is a misapprehension of the law that a person cannot inherit through 'two caps' as argued by the appellant through his counsel. The trial court did not err in considering whether the widow could also be entitled to inherit the remainder of the estate of her late husband.
Who is the rightful legal heir of the remainder of the estate of Ahmed Mohamed Nasib?
19. The general principle of distribution of estates under Islamic law is the assignment of shares to the Qur'anic heirs (sharers) and the remainder to the residuaries, the closest male relatives. The degree of kinship and nearness to the deceased is the key basis to the determination of those entitled to inherit.
20. The deceased in this matter was not survived by any child, siblings or uncles. Nasib Ali had three children: Mohamed, Abdulrahman and Said Mohamed Nasib. Abdulrahman had no child. Mohamed had one child, a son Ahmed Mohamed Nasib. Said Nasib had three daughters: Aisha, Maryam and Halima Said Nasib, Ahmed Mohamed Nasib married his first cousin Aisha Said Nasib. She is Ahmed Mohamed Nasib's bint amm, a full uncle's daughter. An uncle's daughter is neither a sharer nor a residuary. She is distant kindred on the deceased's paternal side and, therefore, the closest kindred relation of the deceased. She is entitled to the remainder of his estate. I do not agree that the trial court erred in assigning the remainder and, consequently, the entire estate to her.
The heirs of Aisha Said Nasib
21. Aisha Said Nasib had no child. Her sisters Maryam and Halima predeceased her and had no children. His uncle Abdulrahman Nasib predeceased her and left no children.
22. Her mother, Bichuba Abdulaziz, had two siblings: Mwanabarani Abdulaziz and Hassan Abdulaziz. Mwanabarani was not survived by any child. Hassan Abdulaziz was survived by Swaleh, Mohamed Saada, Rukia, Amina and Abdulkadir Hassan Abdulaziz. Swaleh and Rukia are also deceased. Abdulkadir is the respondent in this appeal. He relates to the deceased through her mother's sibling, abnau' wa banatul Khaal.
23. Mwanajaa Atekelo and Mwanate Atekelo were sisters. Mwanajaa had four children: Nyanya, Shaibu, Mwanamzuri and Kashi Hamisi. Nyanya Hamisi's children are: Said Ali and Abdulrahman Nasib Ali. Said Ali had one daughter Aisha Said Ali, the deceased herein. Shaibu Hamisi had one child, Khamisi Shaibu. Mwanamzuri Hamisi's children are: Kabibi Ali and Juma Ali. Kashi Hamisi's children are: Mwanate Mwidau and Abdalla Mwidau. Shaibu, Mwanamzuri and Kashi Hamisi are deceased's father's uncle's children abna' wa banat khal al-abb. Mwanate Atekelo was survived by Mwinzagu who was survived by Mohamed who was survived by Ali Mohamed Mwinzagu, the Appellant in this appeal. He is related to the deceased through his great-grandmother.
24. The Appellant does not have a direct link to the deceased. He relates to her through Mwanate Atekelo, who is a great-grandmother of the deceased. Mwanajaa Atekelo, whose descendants had her own children who also had children who are surviving. They are closer to the deceased than the Appellant. The Appellant is a remoter kindred relative of the deceased. He is excluded from inheriting the late Aisha Said Ali by the presence of her closer and stronger direct relations on her mother and father's side. This is true whether madh'habul ahlul Tanzil or Madh'habul Ahlul Qaraba is applied. He is not entitled to inherit her in the presence of closer kindred.
25. The deceased was not survived by any sharer or residuary. The principle of radd does not apply. The estate devolves to distant kindred Dhawil arham under Q.8.75.
"and those who believed after [the initial emigration] and emigrated and fought with you -they are of you. But those of [blood] relationship are more entitled [to inheritance] in the decree of Allah. Indeed, Allah is knowing of all things.”
26. In 'Muslim Law of Marriage and Succession in India' S. A. Kader, Eastern Law House, at page 63 states:
"as already pointed out, if there are no sharer or residuary, the distant kindred inherit the estate of the deceased. There is one exception. If there are no residuary and the husband or wife is the only sharer, he or she takes his or her Qur'anic share and the residue go to the distant kindred, if any.'
27. Distant kindred are found in four categories. Sh. Muhammad Ali Al Sabuny in "inheritance in Islamic law' at page 189 - 190 lists the categories of distant kindred as:
i. Descendants of deceased -Daughter's and son's daughter's children
ii. Ascendants of deceased - False grandparents.
iii. Descendants of parents (children of siblings)
iv. Descendants of grandparents (uncles children).
28. ‘The Muslim Law of inheritance' compiled from original Arabic text of 'Sirajiyyah, Qur'anic verses and Hadis and their English translation by Mohammedullah ibn S. Jung, Kitab Bhavan, at page 40- 41 gives the list of distant kindred and their priority in inheritance as follows:
‘List of distant kindred:
1. Descendants of the deceased
a. Daughters' children and their descendants
b. Children of son's daughters and their descendants
2. Ascendants of the deceased
a. False grandfathers
b. False grandmothers
3. Descendants of parents
a. Full brothers' daughter and their descendant
b. Consanguine brothers' daughters and their descendants
c. Uterine brothers' children and their descendants
d. Daughters of consanguine brothers' sons and their descendants
e. Sisters) whether full or consanguine or uterine) children and their descendants
4. Descendants of Immediate grandparents (true of false)
a. Paternal aunts, father's full sisters and mothers full brothers and sisters i.e maternal uncles and aunts.
b. Father's consanguine sister's and mother's consanguine brothers and sisters
c. Paternal aunts' descendants, maternal uncles, and aunts' descendants
d. Uterine brothers and sisters of father and mother
e. Full paternal uncles' daughters and their descendants
f. Consanguine paternal uncles' daughters and their descendants
g. Uterine paternal uncles' daughters and their descendants
h. Full paternal uncles' sons' daughters and their descendants
i. Consanguine paternal uncles' sons' daughters and their descendants
j. Descendants of remoter ancestors true or false
29. Sh. Muhammad Ali Al Sabuny in "Inheritance under Islamic law' at pages 177 -193 discusses distribution of estates among the distant kindred. He notes that there are three opinions among Muslim jurists in its distribution:
i. Distribution of estate equally among the distant kindred without differentiation between the near and far, male or female among the distant kindred. This opinion is referred to as Madh'hab ahlul rrahim. He opined this opinion is not based on any authority or logic and is not considered.
ii. Assignment of the descendants of the distant kindred the share of their descendants. The distant kindred take the shares of his / her ancestor, and the one whose ancestor is excluded, equally becomes excluded. This opinion is referred to as madh'hab ahlul tanzil. It is the opinion of Imam Ahmad ibn Hanbal and contemporary Shafi' and Maliki jurists.
iii. Giving the distant kindred the treatment of residuary heirs by giving due consideration of strength of proximity to and blood relationship with the deceased, the male getting twice the share of the female as with residuaries, and nearer excluding the distant. This opinion is referred to as Madh'hab ahul Qaraba. This is the opinion of Ali bin Abi Talib (R.A.) adopted by the Hanafi school of jurisprudence.
30. Sheikh AI Sabuny supported madh hab ahulul Tanzil over Ahlul Qaraba as it is most widespread among the Muslim countries and easier to apply, references distant kindred to their original primary heirs whose shares are ascertained and well known. It is noted, the deceased and parties herein are of the Shafi school of jurisprudence and therefore Madh'habul tanzil applies to them.
31. Applying madh'habul tanzil, the descendants take the share of their ancestors, the children of Hassan Abdulaziz are abnaul khal, they take share and position of the mother (1/3), while children of Said Ali's (Aisha's father) uncles: Shaibu, Mwanamzuri and Kashi are abnau' and banat Khal al-abb, they take the share and position of father (2/3). After distributing the shares to the respective group of heirs, the beneficiaries therein share their part of the estate equally without differentiation between male and female.
32. The rationale of the trial Kadhi of assigning 2/3 to children of Nyanya’s grandchildren and 1/3 to children of Bichuba's children was incorrect. Distant kindred, in the same degree, share the estate equally irrespective of gender.
33. The male getting twice the share of the female applies in Madh hab ahlul Qaraba. In Madh'hab ahlul Tanzil, the surviving heirs after getting the share proportionate to that of their ancestors, share the estate equally only among the heirs of their particular group; the groups representing different ancestors may get different shares although they are all distant kindred.
34. Children of Hassan Abdulaziz take the position of the mother (1/3), while children of Said Ali's (Aisha's father) uncles, Shaibu, Mwanamzuri and Kashi, take the position of the father (2/3). The ratio, therefore, remains.
35. The appeal fails as does the cross-appeal, save that the heirs of the children of Hassan Abdulaziz, male and female, will share their share of the estate equally among them and as will the children of Shaibu, Mwanamzuri and Kashi Hamisi.
36. As this is a family appeal, each party will bear its own costs.
37. It is so ordered.
Dated and signed at Mombasa this 18th day of January 2024. Delivered virtually via Microsoft TEAMS.