In re Estate Omar Swaleh Doso (Deceased) [2016] KEKC 1 (KLR)

REPUBLIC OF KENYA

IN THE KADHIS COURT AT KISUMU

SUCCESSION CAUSE NO 10 OF 2015

IN THE MATTER OF THE ESTATE OMAR SWALEH DOSO (DECEASED)

LEAHA NYANGASI........................................................APPLICANT

MWANA HAMISI OMAR..........................................RESPONDENT

JUDGEMENT

LEAHA NYANGASIof identity card number 1087475 referred herein as a petitioner filed a petition on 11th day of  AUGUST  2015

the petitioner claimed that: She  and the respondent are both  widows  left by the late Omar Swaleh Doso .was survived by the following .

Mwanahamis Omar              (widow)

Leaha Nyangasi                    (widow)

Mariam Omar                        (daughter)

Swaleh Omar                         (son deceased)

Ramdhan Omar                      (son deceased)

Mwanarabu Omar                  (daughter)

Khadija Omar                         (daughter)

Swaleh Omar                          (son)

Mwanahawa Omar                  (daughter)

Mohamed Omar                      (son deceased)

Mwanaisha omar                     (daughter)

The late omar swaleh Doso left two plots as follow:

1- KISUMU/MIGOSI/ 446

2- KALOLENI NO 89

The petitioner sought that the both plots ware developed and residential where as the Migosi  Plot was  being rented , and the Kaloleni  one was being  used by the first family for residential.

The petitioner stay with her16 years old son in a one room rental house paying rent of 2000/= per month.

The petitioner claimed that she  has no income and was depending  on her husband for her upkeep  and the education for her son.

The respondent has refused  in - cooperate the petitioner in the proceeds from any asset left by the husband, addition to that the respondent has sold the migosi plot without the consent of the  whole family and has not shared the proceed with anybody.

The petitioner stated that she has withdrawn her son from boarding  school to day school  because she cannot  afford to pay his boarding fees yet.

On the other hand The respondent denied the petitioner's allegation in respect of the migosi plot and stated that  the house at migosi was not in their name  it is somebody property bought from the late omar swaleh dosa  before his death. The only haouse they are collecting rent  from  is plot no 89 at  Kalolenione 12000/= per month . to support the issue  the respondent a valid one witness namely  john Wamboto.

The W D1  stated that Mr Lukoye  introduced him to Omar Swaleh Dosa and his wife  they discussed and agreed to sell the house  to him, Mr wamboto  has two houses at Arin and Migosi He moved  dosa and  his wife to stay at  arina. He bought  block 6/253 was  belong to  Dosa  and his wife mwanahamis the  house is in Mr wombotp's  name he coun't  remember if  has a sale garment.

The respondent agreed that it is on her responsibility to pay school fees  and house rent for petitioner, unfortunately has not pay rent for February and school fees for last time in last year and  first time in this year.

I have noted the issue clearly and I found that there is no plot  in  KISUMU migosi in the name of  the deceased(Omar Swaleh Dosa) as petitioner alleged.  This is Because  the house was  sold by the deceased  before his death .

Concerning the rent and school fees the respondent agreed to pay them.

The issues for determination in this matter is as follow:

under Islamic law, the widows are entitled to one eighth (1/8) share if the deceased left a child. Each son is entitled to twice the share of the daughter under Qur'an:Nisa: 11-12

In this matter the honorable court gave the  parties herein  a chance to agree  one of the following options :

(a)The Respondent  to pay for the house

(b)The petitioner to pay the Respondent  for him to forgo  his share.

(c) The house to be sold  and the proceeds shared .

feeler to the above court will finally decide(??? ?????? ???? ??????)

It is evident to this court that parties have refused to agree on either of the above option given to them therefore the decision of this as follows :

The legal heirs and mode of distribution of the estate of Omar Swaleh Dosa   are:

legal heirs                  relative                  share fraction

Leaha Nyangasi (widow)  room no 1 rented for 1500

Swaleh Omar (son) room no 2 rented for 1500 and the room  at right side of the house

Mwanahamis Omar (widow)   Room no 3 rented for 1500

Swaleh Omar (son babuji)   room no 4 rented for 1300 and no 6 rented for1000

Mariam Omar (daughter)  room no 5 occupy by  grand children shall devolve to  maryam  because they are not direct beneficiaries.

Khadija Omar (daughter) Room no 7 occupy by broths    shall devolve to khadija

Mwanarabu Omar (daughter)   room no 8 and 9 each one rented for 500/=

Mwanahawa Omar   and mwanaisha omar (daughters)  room no 10 and 11where the respondent stays devolve to them

Concerning the school fees and  house rent I hereby order that:

1-  the respondent  to pay fees ksh 11000/= within 7 days from today and it will no longer  be her responsibility any more.

2- That the respondent to pay Sh 2000=  rent for February   as a house rent within 7 days from today and it will no longer  be her responsibility any more.

3- Concerning municipal rats of 89152 all beneficiaries shall contribute to clear it as follow :

Each male shall contribute ksh 16210 before end of this year.

Each famale shal contribute 8105 before end of this year.

the respondent mwanahamis omar shall be administrator of the estate to ensure that the court orders are flown .

these are orders of this court .

These are orders of this Court.

R/A- 30 Days

read and delivered this 11th  day of FEBRUARY 2016 in the presence of  Mursal. M . Sizi ------ Kadhi 11

court asistant--------- Rahma  Akidah

Petitioner