A widow is challenging a Muslim court ruling that disinherited her Christian children in a tussle for the estate of her late husband.
Josphine Wanjiru Njuki, widow of Swauriqy Chuba, the son of a tycoon, Chuba Bakari Hamisi, also deceased, says the court discriminated against her children on religious grounds on claims that she was not legally married.
Her lawyer Gikandi Ngibuini disputes this claim and says Njuki and Swauriqy were legally married. However, Njuki and her children never converted to Islam during her marriage.
According to documents filed at the High Court, Njuki and Swauriqy had two children who were entitled to their grandfather’s estate worth Sh200 million, which includes properties in Kilifi and Mombasa.
Entitled to wealth
Swauriqy died on December 18, 2012 before inheriting a portion of his father’s estate.
Swauriqy’s father died before him but the Islamic court, through Principal Kadhi Abdulhalim Athman, made a judgement on August 29, 2013 that he (Swauriqy) was entitled to 9.2 per cent of his father’s wealth.
But the same court said his children with Njuki had no legal right to this portion because they were “born out of wedlock” and have no legal claim to Hamisi’s estate under Islamic law.
Under the Kenyan constitution, Kadhi courts administer Islamic law or Sharia on personal matters including succession and marriage where parties involved practice Islam and have agreed to submit to the authority of this court.
Experts contend Njuki’s case at the High will set a precedent in the jurisdiction of the Kadhi courts in religiously mixed marriages.
Njuki now wants the High court to set aside the Kadhi court’s judgement.
“The said judgement adversely affects the estate of Swauriqy Chuba Bakari, who is the son of Chuba Bakari Hamisi,” says Njuki, who has petitioned Justice Mugule Thande to quash it.
She also argues the proceedings in the Kadhi court were inspired by Asha, one of Hamisi’s widows, without informing her and judgement entered without her involvement and knowledge.
“The proceedings in the Kadhi Court are also void because all the parties were not involved,” said Njuki.
Njuki accuses her step mother-in-law Asha Nifusi Chuba of having filed a succession suit in the Kadhi court on the crisis over distribution of the wealth of the father-in –law. She alleges Asha instigated the distribution without informing her and yet she knew she was married to her step-son, Swauriqy Chuba.
“I was never informed about the petition filed in the Kadhi court and was equally surprised to read the contents of the said judgement, which contained adverse findings regarding my children’s inheritance of their father’s estate,” said Njuki.
She said the ruling infringed on her children’s rights.
“My children will suffer prejudice if not afforded an opportunity to be heard and it would be against the principles of natural justice for this matter to be decided without giving me an opportunity,” she said.
Hamisi died in 2004 and left behind two widows, six sons and seven daughters. In the now contested judgement, the court acknowledged Swauriqy had two children – Christine and Charles – but added their mother was not legally married to their father.
The court also ruled that under islamic law, Swauriqy and his sisters and brothers were entitled to their father’s estate.
Njuki has declared the judgement in the Kadhi courts should be set aside because it was discriminatory and unconstitutional.
She insists she was legally married to the late tycoon at the time of death and the two children were his biological offspring with whom they lived as a family on Hamisi’s property.
She says, in a sworn affidavit, that religion played a part in the alleged discrimination.
“It would be wrong to disinherit the applicants purely on account of their mother’s religion,” she argues.
Njuki wants the court to stop distribution of properties until her application is determined.