A woman has suffered a loss after the High Court in Mombasa rejected her claim to the property of her dead daughter, who had converted to Islam before marrying the love of her life.
Ms Flora Mangachi had claimed the estate of her dead daughter, Caroline Ziri, from the widower, Salim Hussein, asserting that Ziri died a Christian, and that she did not recognise their marriage.
However, Justice Gregory said that evidence tabled before him and the Kadhi’s Court suggest that Ziri was married to Hussein under Islamic law.
“Since, in all likelihood, the deceased was a Muslim, the applicable law for the devolution of her estate was the Muslim law, and as her husband was a Muslim, it follows logically that the succession to her estate would be governed by Islamic Sharia law,” Justice Mutai said in his judgment dated December 19, 2024.
The judge however observed that the question as to whether Ziri converted to Islam and if she married Hussein are questions of fact, which the Kadhi’s Court was best placed to address after hearing the parties.
Justice Mutai cited Part VII of the Law of Succession Act that governs the administration of estates. Section 66 of the said Act lists the order of priority when applying for a grant, and provides that the surviving spouse has priority over any other person.
“Further, a spouse is not obligated to seek any other person’s consent when filing for a grant of representation. Courts have also held that where a deceased person is survived by a nuclear family, all other relatives have no claim whatsoever,” Justice Mutai said. He therefore noted that Mr Hussein, as the widower, had no obligation to seek the consent of Ziri’s mother.
Ms Mangachi moved to the Family Division of the High Court in May last year seeking various reliefs, including a declaration that the Kadhi’s Court has no jurisdiction to preside over a petition filed by Mr Hussein regarding the administration of Ziri’s estate.
She also requested the court to issue a temporary injunction restraining Mr Hussein from interfering with the assets of the deceased he listed in the petition before the Kadhi’s Court or any other properties until her grievances are heard and concluded.
Ms Mangachi told the court that according to her, Ziri died a Christian and never professed Muslim faith during her lifetime.
“The deceased was not married to the respondent,” she said, and accused him of misrepresenting himself as Ziri’s husband and filing a succession case in the Kadhi’s Court. She further accused Mr Hussein of filing the case before the Kadhi’ court as a way of robbing Ziri’s estate.
Mr Hussein opposed the application and admitted to filing the succession case before the Kadhi’s Court but said he did so since he was Ziri’s widower. He said he married Ziri in April 2001 after she converted to Islam, and later changed her name from Caroline Ziri to Salma Ziri.
“We lived together as husband and wife from then to June 18, 2023 when she died,” he said.
In support of this contention, he attached to his affidavit a copy of a marriage certificate, a letter from the Kadhi who officiated the marriage, and a chief’s letter dated July 13, 2023 that indicated their place of residence. He said that he buried the deceased in his ancestral village under Islamic custom and practices.
“Being a Muslim, her property had to devolve in accordance with the Islamic Law,” he said, clarifying that Ms Mangachi filed a preliminary objection before the Kadhi’s Court, but the same was dismissed by the Kadhi upon hearing the parties. He argued that the ruling was never appealed nor otherwise reviewed and urged the court to dismiss Ms Mangachi’s application.
Justice Mutai agreed with Mr Hussein, noting that nothing tangible was brought forth to show that the deceased was not a Muslim or that she was a Christian. He also wondered why Ms Mangachi did not rebut Mr Hussein’s account of Ziri’s burial.
“The conclusion I draw is that this particular assertion was truthful. Why would Ms Mangachi, the deceased’s mother, have permitted the respondent to bury the deceased if, indeed, he had no marital ties to Caroline Ziri?” the judge questioned.
Justice Mutai observed that the Kadhi’s Court’s decision to dismiss Ms Mangachi’s preliminary objection can only be set aside or reviewed when it is presented to his court through an appeal.
