Court moves to end 83-year Sh1bn Mombasa inheritance dispute

The year 1943 marked a turning point in World War II, with Germany surrendering on the Eastern Front. At the same time, Jewish resistance intensified during the Warsaw Ghetto uprising, while Benito Mussolini was overthrown as Italy surrendered.

As the world grappled with chaos, businessman Khator Bin Salim passed away, setting off a court battle over his estate that has endured through colonial Kenya, independence, the advent of democracy, and the 2010 Constitution, remaining unresolved in the corridors of justice for decades. Khator died on June 9, 1943.

In a protracted dispute over wealth now estimated at more than Sh1 billion, his 16 children fought over the estate, passed on, and left the matter to their descendants.

The initial administrator of the estate, Abdulrahman Bin Khator, died in 1966 before distribution could be completed. For 83 years, the case file has moved from one lawyer to another, from one Kadhi to another, and through multiple judges, the latest being Justice Gregory Mutai.

Justice Mutai has now resolved one part of the case determining the rightful heirs. The family now enters a second phase to decide how the estate will be shared.So far, Khator has 72 descendants entitled to a share.

For decades, the family has been divided over whether the deceased’s wives should inherit and whether all 16 children that is,eight sons and eight daughters, should share the wealth, including the portion that would have gone to a son who died unmarried and without children.

Another contentious issue was whether the heirs could occupy the land without paying rent to the estate.

Lawyer Abdul Nassir, relatively new to the legal profession, alongside Ali Salim, appears to have helped unlock a dispute that has persisted for decadessomething he finds puzzling.

“The family did not know what they were fighting for; some of them are languishing in poverty,” said Nassir.

To him, the case underscores that justice is not only about winning but also about resolving disputes promptly. Some of Khator’s grandchildren, now in their 80s, have spent years waiting for resolution in court.

He likened the situation to Samuel Beckett’s Waiting for Godot, where characters wait endlessly for a saviour who never arrives—a play published around the time of Khator’s death.

“The question that lingers in the minds of counsel and administrators, to wit what is this unresolvable legal battle? Your Lordship, the sixteen (16) children of the deceased have also joined their beloved father in the spiritual world. The remaining beneficiaries are grandchildren who are also ageing, and you have witnessed their different age brackets in open court many times,” argued Nassir.

Khator was polygamous. He was married to Rehema Binti Khamis, Tima Binti Ali Bashir, Raya Binti Ali, and Mwanasiti Binti Hemed.

However, he divorced Rehema and Tima before his death. The two women bore him nine children. Their grandchildren, Rishad Abdulrehman and Abdulrazak Khalifa, mounted the final objection against sharing the estate with the widows.

They argued that inheritance should be limited to the 16 children, excluding the wives.

Their argument relied on Quran Chapter 2, Verse 234, which outlines the iddah period a waiting period for Muslim women after divorce or the death of a husband. They claimed that since there was no proof the widows observed iddah, they should be excluded from inheritance.

However, Kadhi Ali Mwinzagu had, in a 1957 communication, recognised Mwanasiti and Raya as legitimate widows entitled under Sharia law to one-eighth of the estate.

Another report by Principal Kadhi AM Mohamed also identified 18 heirs, including the widows, bringing the total beneficiaries to 72.

“As there is no evidence of which of the four widows observed iddah after Mzee Khator Salim’s demise, the estate has been administered and distributed among the 16 beneficiaries. All four and first-generation grandchildren were excluded… Without verifiable evidence… the honourable Kadhi should not have approved… heirs at 18 instead of 16,” argued Rashid and Khalifa.

Nassir, representing Mohamed Bwanadi, countered that excluding the widows would be unjust, especially since 22 years had passed without challenging Mwinzagu’s confirmation.

“The objectors have failed to produce any material before you to deny these lawful widows their rights and what is deserved from what the deceased left,” Nassir said.

On the issue of Khamis’s share, objectors argued it should be divided among all heirs, while administrators maintained it should go only to children from Rehema’s lineage.

Kadhi’s proposal on the distribution of the estate

The Kadhi proposed to the court that Khator Bin Salim widows should get at least 12.50 percent while the remaining wealth should be split between his sons and daughters.

From the proposal, Principal Kadhi AM Mohamed suggested that the businessman’s sons should get at least 7.29 per cent of the estate while his daughters get 3.65 per cent each.

At the same time, the Kadhi urged Justice Gregory Mutai to order that the late Khamis Khator should get 6.29 per cent of the wealth, which will then be split among his uterine brothers and sisters lineage at a share of 9.09 per cent for the males and 4.54 per cent for the females.

At the same time, he recommended that Raya’s share should be split according to her house, with her two sons, Ahmed and Ali, getting 33.34 per cent each and her two daughters, Aisha and Fatma, getting an equal share of 16.66 per cent each.

 On Mwanasati’s wealth, he said that her two daughters, Rashia and Mwanana and a son Rashid, should split the same at a ratio of 25 per cent for the two females and 50 per cent for the male.

On rent, he said that there was no evidence to show that Khator’s descendants used to pay rent before.

“ In Islamic law succession is suppose tom take place immediate after the payment of debt and burials expenses therefore since that did not happen and the parties did not agree on the payment of rent then principally thinks will go as per the custom which one the sources of Islamic law. that the there is no proof adduced before the court that they used to pay rents and agreed to do so therefore.. In this regard, therefore, nonpayment of rents in the suit estate is the prevailing custom. As a result, there is no payment of rent in the estate that the parties did not agree on.

Another dispute centred on whether to auction the properties and share proceeds or subdivide them among beneficiaries. Khalifa and Rashid supported the auction, while Bwanadi proposed subdivision, noting beneficiaries were willing to bear the costs.

On February 14, 2014, Justice Maureen Odero urged the family to resolve their differences, noting the dispute had extended into a third generation.

“As time goes on, the management of this estate will only become more unwieldy and complicated… I have no doubt that all parties wish to have this matter concluded in their lifetimes,” she said.

Other judges who handled the case include Justices Nelly Matheka and Leonard Njagi.

Justice Mutai has now directed administrators to conduct a valuation within 60 days, after which they will meet beneficiaries to agree on distribution.

The matter will be mentioned before Justice Alnasir Visram on July 29 to confirm compliance with the court’s orders.