Mohamed Stambuli v. Mwanaharusi Selemani, Probate and Administration Cause 11-M-65, 1/7/68, Seaton J.

Mohamed Stambuli v. Mwanaharusi Selemani, Probate and Administration Cause 11-M-65, 1/7/68, Seaton J.

This was an application for the revocation of letters of Administration of a deceased’s estate, under the Probate and Administration Ordinance, Cap. 445, section 49. Proceedings begun in the Primary Court to settle the estate ended in an equivocal way. The present respondent, acting on legal advice that those proceedings were outside the jurisdiction of the Primary Court, brought a petition in the High Court for a grant of Letters of Administration and this was granted. Meanwhile, present applicants, anxious to protect their interests, had brought an action in the District Court, which asked the District Administration and this was granted. Meanwhile, present applicants, anxious to protect their interests, had brought an action in the District Court, which asked the District Administrative Officer to take possession of the estate. Applicants now seek revocation on the grounds that the original petition was false, in that (1) respondent is only half-sister of deceased; (2) deceased was wife of applicant Stambuli up to her death;  (3) applicant Saudi is a whole blood son of deceased’s brother Husein.

            Held: (1) Primary Courts have no pecuniary limits to their jurisdiction in administration of deceased’s’ estates, where the applicable law is customary or Islamic law and the estate is not governed by the Marriage, Divorce and Succession (non-Christian Asia tics) Ordinance (G.N. 320 of 1964). (2) Applicant failed to prove that respondent was not whole blood sister of deceased, and the onus is on him to prove it. (3) Deceased was married to applicant Stambuli; the onus is therefore on respondent to prove a divorce. [Citing Ali Omar Mote v. Ali Siraj (1959) E. A. 883]. Although deceased “married” two other persons after leaving Stambuli, there was no firm evidence of any valid form of divorce. (4) Evidence was brought to show that applicant Saudi was illegitimate since his mother was already pregnant with him when she married Hussein, the deceased’s brother. Although Islamic law presumes a child born within 6 months of marriage is illegitimate unless acknowledged by the father, the Evidence Act 1967, s.121 states that birth during marriage is conclusive proof of legitimacy. Even if the Evidence Act does not supersede Islamic law on this point, Husein acknowledged Saudi as his son. (5) As both applicants have interests in the estate, the proceedings to obtain the Letters of Administration were defective. However, it seems that no useful purpose would be served by revoking the existing grant; but it should be qualified by attaching thereto a declaration of the beneficial interests of the present applicants as found by this Court. So. Ordered; costs to be borne by the estate.