https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10709

In re Estate of Bourke (Deceased) (Probate & Administration E531 of 2024) [2026] KEHC 10709 (KLR) (Family) (17 July 2026) (Ruling) Neutral citation: [2026] KEHC 10709 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Family Probate & Administration E531 of 2024 H Namisi, J July 17, 2026 IN THE MATTER OF THE ESTATE OF JANET ELIZABETH BOURKE (DECEASED) Between Roland Alan Owers 1st Applicant Nicola Margaret Owers 2nd Applicant and Image Registrars Ltd Respondent and Capital Markets Authority 1st Interested Party Unclaimed Financial Assets Authority 2nd Interested Party East Africa Breweries Ltd 3rd Interested Party Ruling 1.Before the Court is Notice of Motion dated 22 March 2025, brought by the Applicants, the duly appointed personal representatives of the Deceased's estate. 2.The Application seeks orders of a mandatory and declaratory nature. The jurisdiction of the Court is invoked under Sections 45, 47, and 83 of the Law of Succession Act, alongside the inherent powers preserved by Rule 73 of the Probate and Administration Rules. 3.The Applicants seek an order of mandamus to compel the 1st Respondent and the Interested Parties to immediately transmit 40,656 shares held by the Deceased to the personal representatives and to release all accrued dividends. Furthermore, the Applicants pray for a judicial declaration that the 1st Respondent’s conduct—specifically the imposition of stringent documentation requirements and the withholding of the shares—amounts to unlawful intermeddling with the free property of the Deceased, in contravention of Section 45 of the Law of Succession Act. 4.The 1st Respondent vehemently opposes the Application through a Replying Affidavit sworn on 6 March 2026. The 1st Respondent asserts that its actions constitute statutorily mandated corporate due diligence, necessary to verify title and protect the estate from fraud, rather than unlawful intermeddling. The 1st Respondent further contends that the Application has been overtaken by events and is entirely moot, given that the underlying procedural impasse—stemming from the Applicants' initial inability to produce the original share certificates—was resolved when the Applicants discovered the said documents in February 2026. Brief Background 5.On 20 March 2024, the Grant of Probate was issued by the High Court of Justice in England and Wales, conferring the Applicants as personal representatives of the Deceased. On 10 July 2024, a Petition was filed in the High Court of Kenya to reseal the foreign Grant. On 24 September 2024, the Resealed Grant of Probate was issued by the High Court. On 14 November 2024, the Applicants notified the 1st Respondent of the resealed Grant and requested the transmissions of 40,656 East Africa Breweries Limited shares. Between 15 and 20 November 2024, the 1st Respondent requested verification documents, including the original share certificates, bank statements and dividend notice as part of routine corporate due diligence. The Applicants were unable to produce the original share certificate, claiming that their whereabouts were unknown. 6.On 22 March 2025, the Applicants filed the present Application seeking judicial intervention, alleging that the documentation requested are unreasonable and amount to intermeddling. Between 14 and 23 October 2025, parties execute a Deed of Indemnity for lost share certificates as an alternative regulatory mechanism utilised when original share certificates are lost. This protects the issuer from third party claims. 7.Between October 2025 and February 2026, the 1st Respondent advised the Applicants to open a CDSC account via a stockbroker, which is a mandatory requirement for holding listed shares. The Applicants engaged Capital A Investment Bank. However, the process was delayed due to a concurrent Initial Public Offer (IPO) happening at the same time. 8.On 12 February 2026, the Applicants discovered the original share certificates and notifed the 1st Respondent of the discovery. This fundamentally alters the factual matrix herein since the previous inability to produce the certificates, which necessitated the Indemnity, is now resolved. Analysis & Determination 9.The 1st Respondent’s primary jurisdictional defence is that the Application, as pleaded, is moot. The 1st Respondent argues that the gravamen of the Applicants' complaint in March 2025 was the alleged unreasonable demand for original share certificates and the consequent requirement to execute a Deed of Indemnity. Given that the Applicants subsequently located the original share certificates on 12 February 2026, the 1st Respondent contends that the substratum of the dispute has vanished, leaving no live controversy for the Court to adjudicate. 10.The Applicants averred that the 1st Respondent imposed new and unreasonable documentation requirements to show proof of ownership including demands for copies of share certificates, which were never previously requested and are not in possession of the beneficiaries. 11.It is my considered view that the demand for the original share certificates can no longer be characterized as an unreasonable requirement preventing transmission, because the certificates have now been found and submitted. The collateral dispute regarding the Deed of Indemnity is similarly obsolete, as the discovery of the original certificates negates the necessity for indemnification against lost documents. 12.Therefore, a judicial pronouncement condemning the 1st Respondent for demanding original share certificates would have no practical effect, as the certificates are now available to facilitate the standard statutory transmission process. The specific prayer seeking to compel transmission without the requisite statutory documentation is undeniably moot. 13.However, the analysis cannot end here. The Applicants have also prayed for a declaratory order that the 1st Respondent’s conduct from November 2024 to date constitutes unlawful intermeddling under Section 45 of the Law of Succession Act. The Applicants argue that the 1st Respondent’s refusal to immediately transfer the shares upon presentation of the resealed Grant amounts to intermeddling. 14.To establish intermeddling, the Applicants must prove that the 1st Respondent took unauthorized possession of the shares, disposed of them, or engaged in conduct that risked their dissipation. The evidentiary record unequivocally demonstrates the exact opposite. The 40,656 shares in East African Breweries PLC remain securely recorded in the Deceased’s name on the official share register. The 1st Respondent has not transferred, alienated, mortgaged, or otherwise dealt with the shares. 15.Furthermore, the 1st Respondent’s refusal to instantly transmit the shares was not an assertion of an adverse claim over the estate, but a demand for the Applicants to satisfy the statutory prerequisites for transmission. As the Share Registrar, the 1st Respondent acts as a custodian of the register. Maintaining the status quo of the register while verifying the legal entitlement of the claimants is an act of preservation, not intermeddling. 16.Consequently, the 1st Respondent’s conduct fails to meet the threshold of intermeddling. There is no evidence of unauthorized assumption of control, dissipation, or risk to the estate. The prayer for a declaratory order of intermeddling is wholly unfounded and must fail. 17.Finally, the Applicants further seek an order compelling the release of dividends that have accrued on the shares since 2020. The legal nature of a dividend is that it is an accessory right attached to the principal share. The entitlement to receive a dividend is contingent upon being the duly registered holder of the share on the company's books. 18.Until the transmission process is finalized and the shares are formally credited to the beneficiaries' CDSC accounts, the 1st Respondent is not in a position, either legally or operationally, to release the accumulated dividends to the Applicants. The 1st Respondent has indicated that dividends are withheld and subsequently remitted to the Unclaimed Financial Assets Authority (UFAA) in accordance with the Unclaimed Financial Assets Act, from which the rightful beneficiaries may claim them once transmission is complete. 19.The treatment of such corporate assets requires precise adherence to statutory protocols. In Re Estate of Carolyne Achieng' Wagah (Deceased) [2015] eKLR, the Court clarified that certain nominated or specialized corporate assets operate under distinct statutory rules separate from general probate distribution. While the shares in question form part of the free property, the mechanics of their payout—and the payout of accessory dividends—are strictly governed by corporate and unclaimed asset regulations. The claim for dividends is entirely incidental to the transmission of the shares. As the primary prayer for transmission is premature, the ancillary prayer for the immediate release of dividends must similarly fail. 20.Accordingly, the Court issues the following orders:i.The Notice of Motion dated 22 March 2025 is hereby dismissed.ii.Each party shall bear its own costs for this Application. DATED AND DELIVERED AT NAIROBI THIS 17 DAY OF JULY 2026HELENE R. NAMISIJUDGE OF THE HIGH COURTDelivered on virtual platform in the presence of:Court Assistant: Lucy Mwangi