On 11 October 2018, the High Court made an order in the matter of Salim Abdalla v Swabra Abdulla (Miscellaneous Civil Application Number 20 of 2014), which reconfirmed that in Kenya only the High Court has jurisdiction in matters of administration of a deceased's estate, including those of Muslim faith. Administration of an estate involves gathering the assets of the estate, paying the deceased's debts, managing the estate and distributing the assets.
Established as a Subordinate Court by the Constitution of Kenya, the Kadhi's Court has jurisdiction to determine questions of Muslim law relating to personal status, marriage, divorce and inheritance in proceedings in which all parties profess the Muslim religion and submit to the jurisdiction of the Kadhi's Court. Muslims are also free to choose to submit to the jurisdiction of the High Court for determination of such matters.
Where the family of a deceased Muslim requires direction on how the estate is to be divided in accordance with Sharia law, then they may apply to the Kadhi's Court. The Kadhi would make an order, based on Sharia laws of distribution, setting out the division to take place amongst the beneficiaries.
The Kadhi's Court does not have jurisdiction in the administration of a deceased's estate. Therefore once the shares to be distributed to the beneficiaries in accordance with Sharia law has been determined, the personal representatives named in the deceased's will or determined in accordance with intestacy rules (where there is no will) would need to apply to the High Court to administer the deceased's estate in accordance with the Law of Succession Act. Only the High Court has the power to issue the grant of probate/letters of administration and confirmation of grant which are required for actual distribution of the estate to the beneficiaries.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
