Supreme Court dismisses plea to lift ban against Ahmednasir

Senior Council Ahmednasir Abdullahi. [File, Standard] The Supreme Court has affirmed the ban on lawyer Ahmednasir Abdullahi and his law firm in another blow to his clients. Lawyer Asli Osman on Tuesday pleaded with the apex court to allow the law firm to argue a landmark case on whether children born out of wedlock in Muslim set-ups should be allowed to inherit from their fathers. However, Chief Justice Martha Koome, her deputy Philomena Mwilu, Justices Mohamed Ibrahim, Smokin Wanjala, Isaac Lenaola, Njoki Ndung'u and William Ouko unanimously rejected Osman's plea. Instead, they gave Fatuma Abud Faraj 14 days to salvage her case by either hiring a different law firm or lawyer or arguing it herself. The bench headed by Justice Koome directed that Abud appears before the court's registrar to explain how she wants to proceed. In a ruling read by Justice Koome, the seven judges declared that if Fatuma fails to appear within the time limit, the orders issued stopping Rose Faith Mwawasi and Judith Malele Mwawasi from demanding part of the wealth left by Mombasa tycoon Salim Juma Hakeem will lapse. "Taking note that the petitioner has all along since October 2024 been aware of this court's directions that recused itself from hearing the matters filed by Ahmednasir or his law firm. There is no change of advocate, and the petitioner is not present in court. The registrar will issue a notice to appear before the registrar to indicate how the petitioner wishes to proceed with this matter," said Justice Koome. Fatuma moved to the Supreme Court after Court of Appeal Judges Gatembu Kairu, Pauline Nyamweya and George Odunga unanimously agreed that despite religion abhorring sex before marriage, it is unfair to sideline children born from such escapades when their fathers die. Islamic law dictates that where a child has been born out of a marriage, he or she can only inherit from the mother and not the father. However, Justices Kairu, Nyamweya and Odunga were of the view that the rights of a child supersede one's marital status. According to them, there is no rational justification to prove that a child born in a marriage has a higher claim to wealth than one who is born outside matrimony. "To deny children born out of wedlock the benefit which accrues to other children born in wedlock on the basis of the alleged "sins" committed by their parents, in our view cannot be justified since it would mean that this court would be adopting "hurtful discrimination and stereotypical response" to a clear case of discrimination," ruled the bench headed by Justice Kairu. "It is our view that culture that is harmful to a child in the sense that denies such a child his or her otherwise right to parental care and protection on the ground of marital status of the father and the mother cannot be countenanced," the Judges ruled At the heart of the case was the wealth left by Mombasa tycoon Salim Juma Hakeem. Juma died without a will on February 23, 2015 in Tanzania. In his lifetime, Juma engaged in oil business and had Blue Jay petrol station in Diani. He also had a lorry and two properties in Kilifi and Diani. Four bank accounts were also listed as part of his wealth. Three months after his death, his widow Rubi Mwawasi and her sister Judith Malele filed for succession before the High Court. On the other hand, Fatuma Athman filed her case before the Kadhi's court as Juma's widow. Upon realizing that Mwawasi had filed a succession case before the High Court, Athman also moved to the same court and lodged her claim to the state, saying she was the deceased's lawful wife. Athman stated that she married the deceased on August 4, 2006 ad had four children with him. Athman stated that Mwawasi was a stranger to her adding that the latter's (Mwawasi) children could inherit anything as they were born before Juma married her. She also questioned Mwawasi's marriage certificate allegedly showed that Juma married Warda Imani Mwawasi. In her response, Mwawasi explained that she was initially a Christian and got the name Rubi Mwawasi. However, she explained that on her marriage day, December 11, 2011, the marriage officer insisted that she must get a Swahili name. She stated that her mother-in-law Jully Wakesho gave her the name Warda Imani Mwawasi. Mwawasi said she had four children with the deceased. However, Athman claimed that one child was born of wedlock. Meanwhile, there was a third woman also claiming to have been married to the deceased. Marlin Coram Pownall claimed that she started cohabiting with the deceased from 2011. She too said she converted to Islam and married him in 2011 and they got one child. However, Pownall was also married to a foreigner. She told the court that her former husband deserted her for seven years, thus it was presumed they had parted ways. The judges ruled that her marriage to Juma was null and void as she had not dissolved her previous one. They however found that Mwawasi and Pownall's children are entitled to benefit from the estate either as beneficiaries or dependants.

Supreme Court dismisses plea to lift ban against Ahmednasir

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