Wakilii

Bakhshuwen and Another v Mohamed (Civil Appeal No. 33 of 1948)

East African Court of Appeal · [1949] EACA 3 · 1949 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from decision of H.M. Supreme Court of Kenya at Mombasa
Decision
Wakfs declared null and void; appellants' challenge to the validity of the wakfs rejected

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that a family wakf with an ultimate but illusory gift to mosques is invalid in Kenya, following the Privy Council decision in Abdul Fata Mohamed Ishak v Russomoy Dhur Chowdhry (1894) and the Court's own precedent in Civil Appeal No. 1 of 1946. The Court found no material difference in wakf law between the Shafi, Hanafi, and Ibathi schools. Until the Kenya Legislature enacts validating legislation similar to that in India (1913) and Zanzibar (1946), such wakfs remain void. The appeal was dismissed.

Outcome

Wakfs declared null and void; appellants' challenge to the validity of the wakfs rejected

Facts

The respondent Mohamed Bin Salim Bakhshuwen created two identical wakfs of property in Mombasa for the benefit of his two daughters (the appellants) and their children from generation to generation in perpetuity. The wakfs provided that in the event of total extinction of the family line, the property would benefit the respondent's nearest relatives, and failing them, three mosques. The respondent subsequently instituted proceedings in the Supreme Court at Mombasa seeking a declaration that the wakfs were null and void. The trial judge followed the Court of Appeal's decision in Civil Appeal No. 1 of 1946, which held that such wakfs with ultimate but illusory charitable gifts were invalid. That earlier case concerned a wakf in Zanzibar governed by Ibathi law. After the 1946 decision, Zanzibar enacted the Wakf Validating Decree, 1946, making such wakfs valid with retrospective effect. The present case was governed by Shafi law and concerned property in Kenya.

Issues

  1. Whether a wakf of property for the benefit of the settlor's daughters and their descendants in perpetuity, with an ultimate gift to mosques upon total extinction of the family line, is valid under Mohammedan law as applied in Kenya.
  2. Whether the Court of Appeal's earlier decision in Civil Appeal No. 1 of 1946 (Said Bin Mohamed Bin Kassim El-Riami v The Wakf Commissioners, Zanzibar) should be followed or distinguished.
  3. Whether there is a difference in the law of wakf between the Shafi, Hanafi, and Ibathi schools that would permit distinguishing the present case from the 1946 decision.

Orders

  • Appeal dismissed.
  • Costs awarded to the respondent.
  • Application for leave to appeal to the Privy Council in forma pauperis refused on jurisdictional grounds.
  • Leave granted under Article 3(b) of the East African (Appeal to Privy Council) Order in Council, 1921, and leave granted to petition the Judicial Committee for special leave to appeal in forma pauperis.

Rules and key headnotes

Family Law — Wakf — Family Wakf with Ultimate Charitable Gift — Validity
A perpetual family settlement expressly made as wakf is not valid merely because there is an ultimate but illusory gift to charity. Where a wakf provides for the benefit of the settlor's descendants in perpetuity with a gift to mosques only upon total extinction of the family line, the charitable element is illusory and the wakf is void.
Statutory Interpretation — Judicial Precedent — Binding Effect of Privy Council Decisions
Courts in East Africa are bound by decisions of the Privy Council on questions of Mohammedan law. Where the Privy Council has held that a particular type of wakf is invalid, that principle binds the Court of Appeal for Eastern Africa unless and until the Privy Council itself reviews the position or the relevant legislature enacts validating legislation.
Family Law — Wakf — Schools of Mohammedan Law — Uniformity of Principles
There is no difference in the law of wakf between the Shafi, Hanafi, and Ibathi schools of Mohammedan law insofar as family wakfs with ultimate charitable gifts are concerned. The same principles apply across all three schools.
Statutory Interpretation — Validating Legislation — Territorial Limitation
Validating legislation enacted in one jurisdiction does not afford relief to parties in another jurisdiction. The Wakf Validating Decree enacted by the Government of Zanzibar with retrospective effect could not validate wakfs of property situated in Kenya, which remained subject to Kenya law.

Legislation cited (3)

  • Kenya Order in Council, 1921 s.4(2)
  • East African (Appeal to Privy Council) Order in Council, 1921 Article 3(b)
  • Wakf Validating Decree, 1946 (Zanzibar)

Cases cited (6)

  • Abdul Fata Mohamed Ishak and others v Russomoy Dhur Chowdhry and others (1894) 22 Indian Appeals 76
  • Said Bin Mohamed Bin Kassim El-Riami and others v The Wakf Commissioners, Zanzibar (Civil Appeal No. 1 of 1946)
  • Talibu Bin Mwijaka v Executors of Siwa Haji 2 LREA 33
  • Mistry Amar Singh v Hazara Singh (1946) 13 EACA 18
  • Abdul Ghani Kassam v Hussein Mir 10 AIR 82
  • Mohamed Abdulla v Abdul Rehman 9 Bombay LR 998

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Bakhshuwen and Another v Mohamed (Civil Appeal No. 33 of 1948) [1949] EACA 3 (1 January 1949)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.