Man appeals sale of Sh13 million family house by stepmother

Ali Omar claims that the house is not meant for sale. [iStockphoto]

A man has moved to the appellate court seeking to stop the sale of a Sh13 million family Swahili house by his stepmother.

Ali Omar, the firstborn in the family of four, claims that the house was part of the inheritance left by his late father, Gora Ngwali, and is not meant for sale.

He said the sale would render him and his four sisters homeless as all other estates have been distributed equally among 12 other heirs of the late Ngwali. Further, he said that he had spent money on repairing the house.

In his appeal, Omar said neither he nor his sisters were involved in the sale agreement of the house to Zena Hemed, who he said has only paid 10 per cent of the Sh13 million purchase price.

Omar said that there were two other estates in Kisauni they had agreed could be put for sale and the proceeds be distributed equally.

Proceeds shared equally

"Amongst them is an incomplete house and another Swahili house in Kisauni that we had agreed could be sold and proceeds shared equally amongst ourselves, except the family in Zanzibar," said Omar.

He said that although one of his sisters had been involved in the sale agreement, she was to get Sh800,000 from a side structure she built, but she came back to her senses and cancelled the agreement.

He said the property was sold on May 5, 2017, and transferred to Hemed on August 30, 2017, by Halima Kiondo (stepmother) and Latifa Gora (sister) without involving him and his other sisters and heirs in Zanzibar.

Omar challenged his eviction from the home, claiming that Senior Kadhi Khamis Ramadhan had on May 15, 2018, suspended all the transactions of the house and appointed him the administrator of the estate pending the sale of the property.

Interest in purchasing

Omar said that he had shown interest in purchasing the house instead of it being sold to strangers against his late father's wish but had yet to raise the funds.

He said Hemed had failed to deposit the amount and that they no longer wished to have the house sold.

In a ruling dated April 4, 2019, Principal Kadhi Juma Abdalla gave Hemed the go-ahead to buy the house after Omar failed to raise the Sh13 million to purchase the house.

The Kadhi asked Omar to vacate the house within 60 days and Hemed to deposit Sh13 million in court for distribution to all the 13 heirs of the late Ngwali, failure to which the house be auctioned.

Kadhi Abdalla had overturned a ruling by Senior Kadhi Ramadhan dated May 23, 2018, that appointed Omar as administrator of the Guraya estate pending the official sale.

Kadhi Ramadhan recognised Omar as the only heir running the affairs of Guraya house pending the final distribution of the estate.

Hemed told Kadhi Abdalla that Kadhi Ramadhan issued orders overturning the sale of the house in her absence and hence wanted the same orders to be reviewed.

All the 12 heirs of the late Ngwali did not oppose Hemed's application for review for the sale of the house, except Omar.

Omar said Kadhi Ramadhan had on August 1, 2018, revoked the sale of the house and that Hemed had not paid the whole sum before the transfer was made in her favour.

He said his stepmother and sister had not consented by all the other 12 heirs to be administrators of the deceased estate, and the court had stayed the same pending the hearing of a petition dated June 2, 2017.

Sale of the house

However, Hemed said Kadhi Ramadhan, in his ruling dated February 9, 2018, over-reached by overturning the sale of the house, an order that was never prayed for.

Kadhi Abdalla, in his review ruling, said Omar did not appeal the sale of the house in a succession judgement delivered by Kadhi Abdulhalim Athman on January 29, 2015.

On September 23, 2016, Kadhi Athman ruled that Omar pay Sh10,675,000 plus sh.800,000 within four months, failure to which the house would be auctioned, and proceeds be distributed equally amongst the 12 heirs.

Upon being dissatisfied with Kadhi Abdalla's ruling, Omar filed for an appeal in the High Court family division before Justice John Onyiego on July 25, 2019, seeking to overturn the sale of the house to Hemed.

"The Hon. Kadhi erred by unfairly directing me to vacate the premises within 60 days, notwithstanding that the interested party had only paid 10 per cent of the purchase price," said Omar in his plea in the High Court.

Estate to be revalued

In his appeal, he sought the High Court to allow him to be enjoined as an administrator of the Guraya estate and for the estate to be revalued.

Omar also sought to have the transaction and transfer of the house to Hemed be cancelled and be reinstated back to them and be distributed as a whole under Islamic law, and the 10 per cent payment by Hemed be declared as a liability to his late father's estate.

He also sought to have his brothers, Pili Gora and Hawa Gora, who live in Zanzibar, be enjoined in the suit.

However, Justice Onyiego and Justice Gregory Mutai dismissed his appeal and upheld Kadhi Abdalla's judgment, allowing for the sale of the house to Hemed.

The judge said that Omar had participated in all the Kadhi's court proceedings and agreed to have the Guraya estate be sold, and the proceeds be distributed amongst the 13 heirs.