1. Legal Structure and Incorporation
Kadhis’ Courts are established under Article 170 of the Constitution. Their jurisdiction is limited to the determination of questions of Muslim Law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim Religion and submit to the jurisdiction of the Kadhis’ courts. There are 14 stand-alone Kadhis’ courts while the rest are located at various Magistrates courts.
In the Kwale Kadhi’s courts, the Kadhi takes a more conciliatory & mediatory role, rather than the arbiter in cases before him. Parties are allowed to speak during the hearings, giving their opinions and arguing their points before him. This all happens before he pronounces his ruling. The petitioners more often than not, represent themselves before the Kadhi.
2. Succession Petition Hearings
To initiate a succession petition in Kenya’s Kadhi’s Court, you must file the petition with the court, supported by a sworn declaration (affidavit) outlining the facts and the requested orders. Key documents include the deceased’s death certificate, proof of being a Muslim (as Kadhi’s Courts only handle matters for Muslims), a list of beneficiaries, and a schedule of the estate’s assets and liabilities. The Kadhi’s Court determines lawful heirs and distributes assets according to Islamic law but does not issue grants of representation, a power reserved for the High Court and Magistrates’ Courts.
There are a number of key takeaways to be considered when filing a succession petition :
Confirm Jurisdiction
Ensure both the deceased and all interested parties are Muslim and have submitted to the Kadhi’s Court’s jurisdiction.
Gather Documents
1. Original and copies of the deceased’s death certificate.
2. Verification form of the death from the Registry of Births and Deaths.
3.Original will and two copies, if it is a testate succession.
4.A letter from the Area Chief stating the surviving beneficiaries, if intestate.
5.A detailed list of the deceased person’s property (assets) and liabilities. A search from the Lands Registry in the event of property being ruled on is land.
6.A list of the beneficiaries and dependents.
7.ID copies of the petitioners in the matter.
8.A letter stating family consent in the event that there are multiple beneficiaries and dependents.
Prepare the Petition
The petition itself is a formal application to the court.
Draft the Supporting Declaration (Affidavit)
- Swear an affidavit detailing the specific facts of the case.
- Clearly state the nature of the orders you are seeking from the court.
File in Court
Submit the petition, the supporting affidavit, and all other required documents with the Kadhi’s Court. Of great importance is to also ensure that the petition, the supporting affidavit and all other documentation is also filed on the Judiciary e-filing portal system.
Key Takeaways When Filing a Succession Petition
Grants of Representation
The Kadhi’s Court determines the lawful heirs and orders the distribution of the estate but does not issue grants of representation.
Rules of Court
While Section 5 of the Kadhi’s Courts Act grants jurisdiction in succession matters for Muslims, the Act notes that rules governing procedure and practice for these courts have not been established, meaning that procedure in these courts largely follows the Civil Procedure Act and rules of subordinate courts.
Jurisdiction Limitations
The Kadhi’s Court has jurisdiction over personal status matters like marriage, divorce, and inheritance for Muslims only.
Appeals
Decrees or orders from a Kadhi’s Court can be appealed to the High Court of Kenya.
