Win for widow after nine-year succession battle

Parents’ failure to formalise their union cannot be used to deny children the right to inherit their father’s property, the High Court in Mombasa has ruled.

Justice John Onyiego of the Family Division made the ruling in a case in which a widow and her two children had been disinherited for being non-Muslims and that she was not married under the Islamic law.

“Since paternity is not denied or challenged, failure by the children’s parents to formalise their marriage cannot be visited on them to deny them what they are, by law, entitled,” said Justice Onyiego.

He ordered that the property their deceased father was entitled to be distributed to them equally, noting that the kind of relationship their parents had was immaterial.

“The administrators of the estate have no choice but to deliver and execute their mandate by transferring 9.21 per cent of the shares entitled to the deceased to his two children,” said the judge.

Sigh of relief

The ruling has come as a sigh of relief for Josephine Wanjiru and her two children after more than nine years of litigation.

The woman and the children had been locked out of Swauriqy Chuba’s share of the multimillion-shilling property left behind by Bakari Hamisi, his deceased father.

The woman’s attempts to fight for her children’s right failed twice after the same was rejected by the Kadhi’s Court and the Family Division Court in Mombasa in 2013 and 2015.

Ms Wanjiru picked up the fight for the right of her children to inherit their father’s property. She had lived with Mr Chuba as husband and wife from 1992 until his untimely death in 2012.

Islamic law

Before he died, Mr Chuba had petitioned Mombasa’s Kadhi’s Court seeking determination of the individual beneficiaries’ shares of their deceased father’s properties in accordance with the Islamic law on inheritance.

Mr Chuba’s brother, Ali Chuba, then took over and prosecuted the case before the Kadhi. The Muslim court, in a judgment delivered on August 29, 2013, held that the widow and her children, born out of wedlock, were not entitled to inherit the estate, according to the Islamic law.

The Kadhi, however, recognised that the widow’s husband was entitled to 9.21 per cent share out of his father’s estate.

Ms Wanjiru did not, however, participate in the proceedings before the Kadhi’s Court, but after the judgment was delivered, she returned to the court and sought to overturn the decision locking her and her children out of her husband’s shares.

She argued that the Principal Kadhi’s decision was an abuse of the court process and that she was condemned unheard.

Ms Wanjiru also lamented that she is not a Muslims, hence was wrongly subjected to Islamic law. Her request was, however, declined after the principal Kadhi held that under the Islamic law, a woman and her children cannot inherit such property if they are non-Muslims.

Wrong jurisdiction

She moved to the High Court for an intervention and asked Justice Mugure Thande to determine her late husband’s 9.21 per cent share of the larger estate.

“I am not a Muslim; hence, I could not be subjected to its application or jurisdiction. In any event, the Islamic law is discriminatory, hence unconstitutional,” she said.

Her in-laws opposed the application, urging the judge to uphold Kadhi’s position. In her ruling dated December 15, 2015, Justice Thande dismissed her request and upheld the Kadhi’s ruling.

The widow appealed against the same to the Court of Appeal. It upheld the appeal.

The appellate judges directed the High Court to hear the matter under the Succession Act.

Children innocent

The judges held that the two children were innocent and born out of a long relationship between the widow and the deceased.

Justice Onyiego picked up the case in 2020. Ms Wanjiru said her in-laws knew her very well as the widow of their brother, hence she was shocked when they turned against her to an extent of threatening to evict her from one of the estate’s houses, disconnected electricity and refused to pay the children’s school fees.

She urged the court to assign the share of her husband to her so that she could hold in trust for the children.

“Children cannot be victimised and suffer on account of religion,” she said.

But Mr Ali, the administrator of the estate, reiterated the Kadhi’s Court judgement, insisting that his late brother was not legally married to Ms Wanjiru under the Islamic law, hence children born out of such a relationship were not entitled to inherit any property.

Justice Onyiego, however, noted that it was clear from the evidence presented that Mr Chuba had assumed full parental responsibility of the two as his children.

“The fact that the two children were born during the subsistence of their cohabitation and birth certificates issued with the deceased as their father, the presumption is that they were sired by him,” said the judge.

He directed that the 9.21 per cent be, for each asset as per the identification of shares by Sharefa Centre, adopted by the Kadhi at the current value in case the respective properties are not capable of physical subdivision.

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