[2022] KEHC 445 (KLR)

Anunda & another v National Bank of Kenya (Succession Cause 56 of 2015) [2022] KEHC 445 (KLR) (12 May 2022) (Ruling)

Neutral citation: [2022] KEHC 445 (KLR)

Republic of Kenya

In the High Court at Migori

Succession Cause 56 of 2015

RPV Wendoh, J

May 12, 2022

IN THE MATTER OF THE ESTATE OF THE LATE SAMUEL ANUNDA ANUNDA (DECEASED)

Between

Anderson M Anunda

1st Applicant

Anne Samule

2nd Applicant

and

National Bank of Kenya

Respondent

Ruling

1. This matter relates to the Estate of the Late Samuel Anunda Anunda who died intestate at Mobamba on 5/3/2009. The applicants have filed the application dated November 27, 2020 seeking the following orders: -i.That the court be pleased to grant an order lifting the charge over LR No. Bukira/Bwisaboka/824 entered in favour of National Bank on 28th August 1998. ii.Costs be provided for.

2. The application is based on the grounds appearing thereof and is supported by the affidavit of Anderson M. Anunda the 1st applicant.

3. The respondent, National Bank of Kenya filed grounds of opposition dated 5/12/2021 and an affidavit sworn by Chrispus N. Maithya on 6/12/2021.

4. The 1st applicant swore the supporting affidavit on behalf of the 2nd applicant. He is one of the administrators of the estate of the deceased. He deponed that this court issued to the applicants letters of administration intestate on 1/3/2018 and the same were confirmed on 27/5/2019; that he came to know about the existence of a charge against LR No. Bukira/Bwisaboka/824 (the property) which forms part of the deceased estate; that his advocates contacted National Bank of Kenya but the bank failed to take reasonable steps in contacting his advocates in order to reach an amicable solution.

5. Further, he deponed that the bank is not interested in lifting the charge over the property; that it is only fair that the charge be lifted to enable the administrators complete the administration of the deceased’s estate.

6. In its grounds of opposition and the affidavit in support, National Bank of Kenya Ltd (the respondent) argued that the application is an abuse of the court process and the applicants lack locus standi over any claim on the property; that on or about 28/6/1988, a facility of Kshs. 350,000/= was extended to the borrower by the then Kenya National Capital Corporation, now National Bank of Kenya Limited; that upon being served with the instant application, the respondent checked its bank records with respect to the charge but the records cannot be traced in both the physical and soft copy records.

7. Further, that the Certificate of Confirmation of grant issued to the applicants does not include the property as one of the properties of the deceased; that the applicants do not have locus standi over the property and therefore the court cannot entertain this application.

8. The applicants filed their submissions dated 15/7/2021 and further submissions dated December 21, 2021. The applicants submitted that they identified and consolidated all the properties belonging to the deceased and filed these succession proceedings but they realised that the instant property Bukira / Bwisaboka / 824 was encumbered since it had a charge in favour of the respondent’s bank; that the respondent has refused to acknowledge the charge and it therefore means that the charge on the land could remain indefinitely hence hindering the confirmation of the grant. The applicants relied on Lilian Imari Mahira & another v KCB Limited, Migori [2017] eKLR In the Estate of Evans Kamau Mwaura (Deceased) [2013] eKLR and Re: Estate of Martinus Okore & 2 others [2019] eKLR.

9. It was further submitted that this court is vested with powers to determine the dispute under this Act. The court has wide powers to do what is necessary to ensure that the ends of justice are met. In their further submissions, the applicants submitted that the grant herein was partially confirmed on 27/5/2019 but the court declined to confirm the property because there was a legal charge thereon; that the respondent is now confirming that the records of the charge cannot be traced; that the only way that this court can complete the administration of the deceased’s estate is to order that the respondent establishes their claim over it; that the argument that the property is not listed in the certificate of confirmation does not hold water as the property is listed in Form P & A 5. The applicants pray that this court do discharge the legal charge to pave way for the full administration of the estate.

10. I have carefully considered the application, the annexures thereto, the grounds of opposition, the supporting affidavit, the submissions and further submissions.

11. In the application for grant of representation, Section 51 of the Law of Succession Act provides that every application shall include information including the full inventory of the assets and liabilities of the deceased. In cases of intestacy as this one, Section 71 of the Law of Succession Act provides that before grant of letters of administration is confirmed, the court should be satisfied as to the respective identities and shares of all persons beneficially entitled.

12. Pursuant to Section 71 of the Law of Succession Act, where there are liabilities, the administrators have a legal duty to ensure that the liabilities are first settled and/or liquidated before the net intestate estate is distributed. A legal charge over a parcel of land is a liability which must be settled in the first instance before the estate of the deceased is distributed.

13. In this matter, the charged property is known as Bukira/Bwisaboka/824. The certificate of search dated 30/1/2015 shows that the deceased secured a loan of Kshs. 350,000/= from the then Kenya National Capital Corporation now the National Bank of Kenya Limited on 28/4/1988. The entry of the charge is still subsisting on the title of the property.

14. The respondent has not made any specific claim that the loan still remains unpaid. Therefore, the mere fact that the charge is still subsisting on the title, it does not mean that a loan is outstanding. Besides, the respondent has stated that it cannot trace the documents both in soft and hard copy of the legal charge. It goes without saying therefore that is no valid legal claim that the respondent can make over the property in the absence of proof thereof. The legal charge is not a liability.

15. In the case of Lilian Imari Mahiri & another (supra), the court was faced with a similar situation as the one before this court. The court declined to grant a full confirmation of the grant on account of the legal charge on the property of the deceased. The bank in that case, just like this one, refused to discharge the legal charge until a confirmation of grant is issued. The court disagreed with the position taken by the bank and proceeded to ask the bank to discharge the property therein.

16. I am of the same view. The position taken by the respondent that since the property is not in the Certificate of Confirmation of grant, the applicants have no locus standi is flawed. The applicants are the administrators of the deceased’s estate and have the locus standi to gather and distribute the estate. The question of locus standi of the administrators if any, is spent. The grant was partially confirmed awaiting the respondent to declare any interest it has on the property. Since it has not been able to establish its interest, it has no reason to continue holding the beneficiaries of the estate of the deceased at ransom on account of its missing documents.

17. To this end, I make the following orders:-i.The duly extracted Order and ruling shall forthwith be served upon the National Bank of Kenya Limited within 7 days of this ruling;ii.The court hereby give the Respondents thirty (30) days within which to search for the said documents if any, to establish their claim if any, failing which it is ordered that the National Bank of Kenya shall proceed forthwith to discharge the charge on the property known as Bukira/Bwasiboka/824 and hand over the documents within seven (7) days of the said service;iii.The administrators are at liberty to file a further affidavit to confirm the foregone position;iv.Upon filing of the further affidavit, the administrators shall simultaneously fix a date for confirmation of the grant.v.There shall be no orders as to costs.

DATED, DELIVERED AND SIGNED AT MIGORI THIS 12THDAY OF MAY, 2022. R. WENDOHJUDGERuling delivered in the presence ofMr. Oywer holding brief Mr. Abisai for the Applicants.Ms. Musebe for the Respondent.Evelyn Nyauke Court Assistant.