[2022] KEHC 3170 (KLR)

Bhabra v Bhabra; Bhabra (Interested Party) (Succession Cause 1175 of 1997) [2022] KEHC 3170 (KLR) (Family) (17 June 2022) (Ruling)

Neutral citation: [2022] KEHC 3170 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 1175 of 1997

MA Odero, J

June 17, 2022

IN THE MATTER OF THE ESTATE OF AJIT SINGH BHABRA (DECEASED)

Between

Kulvinderjit Kaur Bhabra

Applicant

and

Simar Kaur Bhabra

Respondent

and

Avtar Singh Bhabra

Interested Party

Ruling

1. Before this Court are three (3) applications for determination as follows: -(i)Summons dated 6th August 2020 in which the Applicant Kulvinderjit Kaur Bhabra (hereinafter referred to as “Kulvinderjit”) seeks the following orders:-1. That this Honourable court be pleased to order property L.R. No. 209/7153/42 Applecross Lavington be valued.2. That this court order that parties sell property L.R. No. 209/7153/42 Applecross Lavington with the option to buy each other out and that the proceeds be shared equally among the children of the deceased or their representatives.3. That the share of Jasvinder Singh Bhabra be debited with the rent for L.R. No. 209/7153/42 Applecross Lavington where his sons reside for the period since 7th April 2020 after the passing away of Simar Kaur Bhabra until they vacate.4. That an account be given in respect of any rent received in respect of the premises.5. That the deputy registrar be empowered to execute any documents necessary to effect the sale.6. That in the meantime, LR. No. 209/7153/42 Apple Cross Lavington be managed by a neutral agent and the proceeds of rent be placed into a joint account.7. That the Respondents be ordered to provide a death certificate in respect of Simar Kaur Bhabra for the court record.8. That this Honourable court be pleased to grant any further orders as it may deem fit and just to grant in the circumstances.9. That the respondent be ordered to bear the costs of this application.”

2. The Application which was premised upon section 47 of the Law of Succession Act, Rules 49, 59 (1) and 73 of the Probate and Administration Rules and all other enabling provisions of the Law was supported by the Affidavit of even date sworn by the Applicants

3. The 1st Respondent Jasvinder Singh Bhabra (hereinafter referred to as ‘Jasvinder’) filed Grounds of opposition dated 12th May 2021 as well as a Replying Affidavit dated 12th May which Affidavit was sworn on behalf of the 1st Respondent by his son Gurvir Singh. The 1st Respondent opposed the Application on the following grounds.1. L.R. No. 209/7153/42 was matrimonial home of the deceased and Simar Kaur Bhabra who was his wife. After the death of her husband Simar Kaur Bhabra became the owner of the matrimonial home by virtue of section 9 of the Matrimonial Property Act 2013. 2.The order made by Aroni J, on 30th January 2020 which is the foundation of the application declaring the transfer by way of gift from Parminder Singh of L.R. No. 209/7153/424 to Singh Kaura Bhabra null and void is on the face of the order null and void as Parminder Singh was not a party to the proceedings. The said order having been made in breach of the principles of natural justice is null and void.3. The said order was made when the learned judge was sitting in a Family Division Court. A family division court lacks the jurisdiction to make orders cancelling entries in the land register.”

4. The second Application for consideration is the summons dated 12th May 2021 in which the Applicant Gurvir Singh (hereinafter referred to as ‘GURVIR’) seeks the following orders: -1. Spent2. That in the first instance, the Applicant be added as an interested party.3. That at the first instance, this honourable court do made exparte order staying all proceedings based on the orders dated 30th January 2020 and in particular staying the hearing and determination of the application dated 6th August 2020 by Kulvinderjit Kaur Bhabra.4. That pending the hearing and determination of the present application, this honourable court be pleased to stay the hearing and determination of the Application dated 6th August 2020 by Kulvinderjit Kaur Bhabra.5. That the orders dated 30th January 2020 be set aside and or declared null and void.6. That the Applicant do have costs of this application.”

5. The application was premised upon Article 50, Article 162 (5) (b) of the Constitution of Kenya 2010. Section 47 of the Law of Succession Act, Section 80 of the Civil Procedure Act and the Inherent powers of the court and was supported by the Affidavit of even date sworn by ‘Gurvir’ (the Applicant).(3)The third application for determination is the Notice of Motion dated 17th May 2021 filed by Simar Kaur Bhabra (as Administrator of the estate of Ajit Singh Bhabra) seeking the following orders:-1. That this Honourable court do review, vary and set aside its Ruling of 30th January 2020 by Justice Ali-Aroni.2. That there be stay of all proceedings pending the determination of the application for review herein.3. That the costs of this application be provided for

That the costs of this application be provided for.” 6. The Application was premised upon order 45 Rules 1(a), 2 (1) (2) of the Civil Procedure Rules 2010, sections 1A, 1B, 3A & 80 of the Civil Procedure Act, Cap 21, laws of Kenya. The Law of Succession Act, Cap 160, Laws of Kenya, Rule 63 of the Probate and Administration Rules, and was supported by the Affidavit of even date sworn by Gurvir Bhabra as one of the proposed Administrators of the estate of the late Simar Kaur Bhabra.

7. The application was opposed by the Notice of Preliminary objection dated 24TH July 2021 which objection was based on the following grounds:-a.That this Honourable court has no jurisdiction to entertain the notice of motion and the orders sought as the same is sub-judice as the Applicant sought similar orders via summons dated 12 May 2021. b.That the applicant has no locus to file the application.c.That the said application is an abuse of this Honourable court’s process.d.That the notice of motion is frivolous and the same should be struck out.”

8. The court directed that the three application be canvassed together by way of written submissions. Gurvir filed the written submissions dated 28th February 2022 whilst ‘Kulvinderjit’ filed submissions dated 23rd March 2022. Counsel highlighted their submissions on 14th April 2022.

Background 9. This matter has a long and convoluted history and relates to the estate of the Family Patriarch Ajit Singh Bhabra (hereinafter referred to as ‘the Deceased’) who died intestate in Nairobi on 31st January 1992. The Deceased was survived by the following:-a.Simir Kaur Bhabra – widowb.Jasvinder Singh Bhabra – sonc.Jaspal Singh Bhabra – sond.Gurshan Kaur Ubhi – Daughtere.Satinder Kaur Kalsi – Daughter

10. The estate was said to comprise of the following two (2) properties:-i.L.R. Number 209/7153/42ii.L.R. Number 209/7521

11. Following the demise of the Deceased Grant of letters of Administration were on 7th December 1998 issued to his widow Simar Kaur Bhabra. The Grant was duly confirmed on 16th April 2022.

12. Thereafter vide an Application dated 7th May 2008 the Administrator of the estate of the Deceased sought to amend the Grant by including two (2) additional properties:-(iii)L.R. Number 209/5432(iv)L.R. Number 209/4448

13. The Administrator sought to have the properties above given to Avtar Singh Bhabra a brother of the Deceased based on a Family Deed Agreement dated 20th December 1988. It was averred that prior to his demise the Deceased and his brother ‘Avtar’ had agreed through the Family Deed to divide their commonly owned properties such that L.R. Number 209/5432 and LR Number 209/4448 would go to Avtar and his son Parminder Singh whereas L.R. Number 209/7521 would go to ‘the Deceased’.

14. The property in dispute between the parties herein is the property known as LR Number 209/7153/42 situated at Apple Cross in the Lavington area of Nairobi (hereinafter referred to as ‘the Lavington property’). Initially the widow of the Deceased Simar Kaur Bhabra who was the Administrator of the estate stated that the ‘Lavington Property’ formed part of the estate and sought to have the property registered in her name but in the confirmed Grant of 16th April 2002 the Administrator was mandated to hold the Lavington property in trust for the children of the Deceased.

15. Thereafter the Administrator (widow) registered a transfer of the Lavington property in her favour purporting that the same had been transferred to her wholly by Parminder Singh Bhabra a son to Avtar Singh who was a brother to the Deceased. As such the widow/Administrator asserted that the ‘Lavington property’ which she alleged had been her matrimonial home did not form of the estate of the Deceased and therefore was not available for distribution to the beneficiaries.

16. The Applicant herein Kulvinderjit Kaur Bhabra is the widow of Jaspal Singh Bhabra one of the sons of the Deceased. She was aggrieved by the actions of the Administrator (her mother-in-law) and filed in court an application dated 18th November 2016 seeking inter alia orders that –5. That property known as LR. No. 209/7153/42 constitutes part of the estate.6. That the court cancels, and or sets aside transfer and registration of LR. No. 209/7153/42 in favour of the Respondent.7. That the court do order that L.R. NO. 209/7153/42 is being held in trust of the deceased children.8. That the title of L.R. No. 209/7521 being held by the Respondent on behalf of the children of the deceased do reject the trust.9. That this Honourable court do apportion the applicants shares, income and arrears in respect of L.R. No. 209/7153/42 and LR. No. 209/7521. ”

17. This application was heard by Hon Lady Justice Ali-Aroni who found that the alleged transfer of the Lavington property from ‘Parvinder’ to the widow of the Deceased, was invalid and could not hold. The Honourable Judge in her Ruling dated 30th January 2020 stated as follows:-“It was therefore fraudulent for the administrator to circumvent the intention of the deceased and his brother and use court proceedings to unfairly shut out the applicant and her children yet other properties were transferred to their respective owners based on the said family deed.The alleged transfer from Parvinder to the administrator for herself cannot in the circumstances of the case, based on law, common sense and in all fairness hold.I have therefore arrived at the conclusion that following the family deed of 20th December 1988 LR. No. 209/7153/42 ought to form part of the estate of the deceased to be held in trust for his children and to be distributed to them and shared equally among them including rent if any that has accrued over the years.It follows therefore that the transfer to Simar Bhabra said to be a gift to her from Parminder disregarding the family deed is null and void. The transfer to Simar Bhabra is hereby cancelled and nullified so that the said property reverts back to the deceased estate and will be transferred in accordance with the findings of this court.

Costs to the Applicant.” 18. It is this Ruling that forms the basis of the three applications now before this court for determination.

Analysis and Determination 19. At this point I deem it necessary to point out that this matter was initially dealt with by Honourable Lady Justice Ali-Aroni who delivered the Ruling dated 30th January 2020. The Judge was transferred to Garissa High Court and it fell on me to take over the case. I have carefully considered the applications before me, the Affidavits filed in reply, the history of this matter as well as the written submissions filed by both parties. The following are the issues which arise for determination:-(i)Whether Gurvir Singh Bhabra has locus standi in this matter.(ii)Whether the Ruling of 30th January 2020 ought to be reviewed.(iii)Whether the Application of 17th May 2021 has merit.(iv)Whether the application of 6th August 2020 has merit.

(i)Locus standi 20. The Applicant Kulvinderjit submitted that Gurvir Singh who has sworn Affidavits on behalf of his father the 1st Respondent Jasvinder Singh Bhabra has no locus standi in this matter as he is not a legal representative to the estate of the Deceased, nor has the said ‘Gurvir’ exhibited any consent signed by the other beneficiaries (his Father and Aunts) authorizing him to act and to file applications on their behalf.

21. On his part ‘Gurvir’ asserts that being the grandson of the Deceased he has a direct interest in this matter. That he is the appointed executor of the will of his grandmother Simar Kaur Bhabra who was an Administrator of the estate of the Deceased. Finally, Gurvir argues that given that he has been in occupation of the Lavington property since the year 2012, he is a party affected by orders made on 30th January 2020 and therefore such is possessed of sufficient locus standi to apply for the setting aside of the said orders.

22. The term ‘locus standi’ is a Latin term, which literally means, ‘place of standing’. Locus standi refers to the right of a party to bring or file a suit in a particular matter.

23. It is trite law that pleadings filed by a party who has no ‘locus standi’ in a matter are ‘void ab initio.’ In the case of Ibrahim v Hassan & Charles Kimenyi Macharia [2019] eKLR Hon Justice Nyakundi observed as follows: -“Locus standi is basically the right to appear or be heard in court or other proceedings. That means if one alleges the lack of the same in certain court proceedings, he means that party cannot be heard, despite whether or not he has a case worth listening. The issue herein is whether the Applicant lacks the requisite locus standi to seek relief from the court to revoke the grant in question issued to the Respondent. In my view, issues as regards locus standi are critical preliminary issues which must be dealt with and settled before dwelling into other substantive issues.” (own emphasis)

24. The estate under consideration is this cause is that of Ajit Singh Bhabra. Gurvir is the son of Jasvinder Singh Bhabra a son to the Deceased who by all accounts is still alive and is quite capable of filing pleadings in this matter on his own behalf.

25. Gurvir is therefore a ‘grandson’ of the Deceased whose estate is under consideration. A grandchild will only be considered a direct heir to the estate of his grandparent where the parents of said grandchild have pre-deceased the grandparent. In such circumstances the grandchild steps into the shoes of their deceased parent to inherit the share of their estate that would have been due to their parent(s). In Re Estate Of Wahome Njoki Wakagoto [2013] eKLR it was held as follows“Under Part V, grandchildren have no right to inherit their grandparents who die intestate after 1st July 1981. The argument is that such grandchildren should inherit from their own parents. This means that the grandchildren can only inherit their grandparents’ indirectly through their own parents, the children of the deceased. The children inherit first and thereafter grandchildren inherit from the children. The only time grandchildren inherit directly from their grandparents is when the grandchildren’s own parents are dead. The grandchildren step into the shoes of their parents and take directly the share that ought to have gone to the said parents.” (own emphasis)

26. In this matter Simar Kaur Bhabra was appointed as the sole Administrator of the estate of the deceased. The said ‘Simar’ passed away in April 2020. There has to date been no substitution/replacement of Simar by a new Administrator for the estate of the Deceased herein. ‘Gurvir’ has not been appointed to replace ‘Simar’ as Administrator of the estate of the Deceased, nor has he even applied to be substituted. Gurvir states that he is acting on behalf of the estate of ‘Simar’ as he was one of the Executors named in her Will. No Grant of Probate issued to ‘Gurvir’ has been exhibited in this court so he has no capacity to act for the estate of ‘Simar’.

29. No explanation has been given as to why ‘Gurvir’ has been filing applications on behalf of his father by all accounts is still alive and is perfectly capable of acting on his own behalf. ‘Gurvir’ has not exhibited any authority and/or consent signed by his father or by any of the other beneficiaries authorizing him to act on their behalf.

30. Gurvir claims to be an Interested Party who stands to be affected by the courts orders of 30th January 2020 as he has been in occupation of the Lavington property since 2012. In that case, the proper procedure would have been for ‘Gurvir’ to apply to be enjoined in this Succession Cause as an Interested Party and obtain a verdict from the court on his status as an Interested Party. Instead, he jumped in and began filing applications and swearing Affidavits in this cause without first obtaining the authority of the court to do so. In the absence of orders enjoining him as an Interested Party, I find that ‘Gurvir’ had no locus in the matter. In the circumstances, I find that Gurvir has no ‘locus standi’ in this matter. Accordingly, I find that the two applications dated 12th May 2021 and 17th May 2021 filed by ‘Gurvir’ are non-starters and are therefore null and void and are hereby struck out.

(ii)Application dated 6th August 2020 31. The remaining application for consideration is the Notice of Motion dated 6th August 2020 by which the Applicant Kulvinderjit Kaur Bhabra sought orders to have the Lavington property sold and the proceeds shared equally among the children of the Deceased or their representatives.

32. Kulvinderjit is the widow of Jaspal Singh Bhabra who was one of the sons of the Deceased Ajit Singh Bhabra. The position of Kulvinderjit is that the Lavington property forms part of the estate of the Deceased and is therefore available to the beneficiaries of said estate who include herself and her children. The said Kulvinderjit states that she holds Grant of representation to the estate of her late husband. Such Grant would authorize her to act in this matter on behalf of the estate of the late Jaspal Singh Bhabra. However, Kulvinderjit did not annex to her supporting Affidavit a copy of Grant issued to her. In the case of OTIENO VS OUGO (1986-1989) EALR it was held -“……….An administrator is not entitled to bring any action as administrator before he(she) has taken out letters of administration. If he does the action is incompetent as of the date of inception.”

33. Be that as it may I note that the 1st Respondent/beneficiary Jasvinder Singh Bhabra filed Grounds of Objection to the application of 6th August 2020. It was submitted that the orders made by Hon Lady Justice Aroni cancelling the entries in the land register were null and void as said orders could only be made by the Environment and Land Court (ELC) and not by the Probate Court.

34. It is manifest that the dispute over this Lavington Property relates to the “ownership” of the same. On the one hand, the Applicant contends that the property belonged to the Deceased and therefore forms part of his estate, on the other hand the Respondents assert that said property was the matrimonial home and devolved to the widow after the death of the Deceased. Indeed the property was on 12th April 2010 registered in the name of the widow Simar Kaur Bhabra. Bring into the mix the Deed of Family Arrangement dated 20th December 1988 by which the Deceased and his brother Avtar agreed to share out certain properties then the situation becomes even more cloudy.

35. It has been submitted that the orders made by Hon Lady Justice Ali-Aroni on 30th January 2020 ought to be reviewed as the same were made without requisite jurisdiction. That only the ELC was clothed with jurisdiction to cancel entries made in a Title Deed.

36. Order 45 Rule 1 of the Civil Procedure Rules 2010 provides for review of orders or decrees made by a court as follows: -(1)Any person considering himself aggrieved—(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is hereby allowed,and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.”

37. Therefore a review of an order or decree can only be granted where(i)there is a mistake or error apparent on the face of the record.(ii)New and important evidence has come to light.(iii)For any other sufficient reason

38. In this matter there has been no allegation of a mistake or error apparent on the face of the record. Nor has there been demonstration of new and important evidence, which has come to light after the orders of 30th January 2020 were made. The grounds being advanced for seeking review is that the learned Judge erred in the cancelling the transfer of the Lavington Property to ‘Simar’ which orders it is alleged the Probate Court had no jurisdiction to make.

39. Therefore what is being alleged is that the learned judge in making said orders misapprehended the law. This is not a ground for review. Where it is being alleged that a court has misapprehended the law then the proper procedure would be to file an appeal. No party has filed an appeal against the Ruling of 30th January 2020.

40. In the case of National Bank Of Kenya Limited V Ndungu Njau [1997] the Court of Appeal stated as follows: -“A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self evidence and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of the law. Misconstruing a statute or other provision of law cannot be a ground for review.” (Own emphasis)

41. Accordingly I find that the application seeking review of the Ruling of 30th January 2020 is not only misplaced but has no basis. The aggrieved parties ought to have filed an appeal instead of seeking a review.

42. It is alleged that the only court with the mandate to reverse the entries in the Title of the Lavington Property is the ELC. That the Probate Court has no jurisdiction over disputes relating to the title to land and/or relating to instruments granting enforceable interests in land.

43. The jurisdiction of this court sitting as a Probate court to hear and determine disputes relating to the property of a deceased person is granted by section 47 of the Law of Succession Act, which provides that the High Court shall have jurisdiction to entertain any application and determine any dispute under the Act and to pronounce such decrees and make such orders as may be expedient.

44. The question of whether or not a dispute in a succession cause should be referred to another court (such as the ELC) was considered by Hon Justice Musyoka in Re Estate Of Alice Mumbua Mutua(Deceased) [2017] eKLR in which he stated as follows:-“…….The Law of Succession Act, and the Rules made thereunder, are designed in such a way that they confer jurisdiction to the probate court with respect to determining the assets of the deceased, the survivors of the deceased and the persons with beneficial interest, and finally distribution of the assets amongst the survivors and the persons beneficially interested. The function of the probate court in the circumstances would be to facilitate collection and preservation of the estate, identification of survivors and beneficiaries, and distribution of the assets.Disputes of course do arise in the process. The provisions of the Law of Succession Act and the Probate and Administration Rules are tailored for resolution of disputes between the personal preventatives of the deceased and the survivors, beneficiaries and dependants. However, claims by and against third parties, meaning persons who are neither survivors of the deceased nor beneficiaries, are for resolution outside of the framework set out in the Law of Succession Act and the Probate and Administration Rules. Such have to be resolved through the structures created by the Civil Procedure Act and Rules, which have elaborate rules on suits by and against executors and administrators. (own emphasis)

45. The dispute over the Lavington Property did not involve an outsider or a third party. This was a dispute between the Administrator of the estate of the Deceased and the beneficiaries of the same estate. In the circumstances I am of the view that the Probate Court had proper jurisdiction to determine that dispute and to make such orders as were necessary to meet the ends of justice.

46. The question in issue was the mode of distribution of the Lavington Property, which lay squarely within the ambit of the Probate Court. There was no need to refer the matter to the ELC. For the above reasons, I decline to review the Ruling of 30th January 2020.

47. In the Summons dated 6th August 2020 Kulvenderjit prayed that the Lavington Property be valued and sold and the proceeds divided equally amongst all the beneficiaries to the estate of the Deceased. She stated that she had tried several times to engage the other beneficiaries to find a way forward to no avail.

48. In the Ruling dated 30th January 2020 at pargraph 14 Hon Lady Justice Ali-Aroni observed as follows:-“I have therefore arrived at the conclusion that following the family deed of 20th December 1988 L.R. No. 209/7153/42 ought to form part of the estate of the deceased to be held in trust for his children and to be distributed to them and shared equally among them including rent if any that has accrued over the years.”

These orders remain valid and enforceable. 49. The original Administrator of this estate Simar Kaur Singh who was the widow of the Deceased is now Deceased. The parties need to agree on a substitute Administrator/Administrators for the estate. Moreover, the Death Certificate of ‘Simar Kaur Singh’ is not in the file. A certified copy of the same ought to be availed as proof of her demise. In the circumstances, I do grant prayer (7) of the Application dated 6th August 2020.

50. In order to enable the parties make a final attempt to negotiate as family and agree on how to distribute this Lavington Property the other prayers made in the application are held in abeyance. If the parties are unable after sixty (60) days to reach consensus on how to distribute this property then the court will proceed to render a decision on the mode of distribution.

CONCLUSION 51. Finally, this court make the following orders:-(1)The summons dated 12th May 2021 as well as the Notice of Motion dated 17th may 2021 are both dismissed entirely.(2)Prayer No. 7 of the summons dated 6th August 2020 is allowed as prayed.(3)The parties are granted sixty (60) days to negotiate as a family to reach consensus on the mode of distribution of the property known as L.R. No. 209/7153/42 Apple Cross Lavington.(4)In the event parties do not agree then this court will direct on the mode of distribution of said property.(5)This being a family matter each side will meet its own costs.

DATED IN NAIROBI THIS 17TH DAY OF JUNE 2022. …………………………………..MAUREEN A. ODEROJUDGE