In re Estate of Sheikh & another

**IN THE COURT OF APPEAL AT NAIROBI** **(CORAM: MUSINGA (P), MUMBI NGUGI & ODUNGA, JJ.A) CIVIL APPEAL NO. 306 OF 2017** **IN THE MATTER OF THE ESTATE OF REHMAT ALI SHEIKH AND** **CIVIL APPEAL NO 307 OF 2017** **IN THE MATTER OF THE ESTATE OF RASHID ALI SHEIKH** **SALAMAT BIBI SHEIKH APPELLANT** *(Being appeals against the ruling of the High Court of Kenya at Nairobi (Family Division) (Farah Amin J.) dated 15th June 2017* *in* ***Succession Cause Nos. 392, 393, 394 and 395 of 2016)*** **\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*** **JUDGMENT OF THE COURT** 1. We have somewhat peculiar appeals before us. The appellant, Salamt Bibi Sheikh, contends, not against another litigant, but against the High Court itself for the manner in which it dealt with the four applications she had filed before it. 2. The appellant had filed four similar applications dated 10th March 2017 in four related succession matters. The first was **Succession Cause No. 392 of 2016**- In the Matter of the Estate of Noor Mohamed Sheikh (Deceased). In this application, the applicant sought to have the grant issued to her on 16th June 2016 and confirmed on 30th November 2016 rectified to reflect the name of the deceased as Noor Mohammed Sheikh alias Noor Mohamed son of Rehmat Ali. 1. In the application in **Succession Cause No. 393 of 2016**, the appellant sought rectification of the name of the deceased from Rehmat Ali Sheikh to Rehmat Ali. In Succession Cause **No.** **394 of 2016**-In the Matter of the Estate of Abdul Rashid Sheikh, the applicant sought rectification of the name from Abdul Rashid Sheikh to Abdul Rashid son of Rehmat Ali. Finally, in **Succession Cause No. 395 0f 2016**-In the Matter of the Estate of Hussein Bibi Sheikh, the appellant sought rectification of the name of the deceased from Hussein Bibi to Hussein Bibi Sheikh alias Hussein Bibi w/o Faiz Mohamed son of Rehmat Ali. 1. The applicant also sought rectification of the title to the property which the record indicates was the sole property in all the estates of the deceased, who were the registered proprietors thereof, from L.R. No. 209/3605 Nairobi situated at South B. to L.R. No. 209/3605 Nairobi Situated at South B. L.R. No.9333. 2. The appellant averred in the affidavits in support of the applications that in applying for grant and confirmation thereof, she had used the names of the deceased in the respective causes as they appeared in their death certificates. 1. The applications were placed for hearing before Farah Amin, J. on 15th March 2017. Upon hearing the applications, the court, in its ruling dated 15th June 2017, did not address itself to the applications for rectification of grant and the certificates of confirmation of the said grants. Instead, it issued orders: 1. ***THAT each of the letters of administration and petitions in P & A, 392,393, 394 and 395, to be served on the heirs of the siblings, children of Rehmat Ali Sheikh.*** 2. ***THAT files in P & A 392, 393, 394 and 395 to be dealt with together and placed before this Court.*** 3. ***THAT list for further directions in 3 months, applicant to take a date at the registry.*** 4. ***THAT all dealings in the property are prohibited.*** 5. ***THAT no costs will be paid out of the Estate. The fee for the application for confirmation shall be discounted on taxation by reason of material mis-statement.*** 6. ***THAT applicant to file a search from the probate registry in Leicester, England, so that there has been no grant in respect of the Estate of each of the owners named in the Title Deed.*** 7. Aggrieved by the ruling, the appellant filed the present appeals in which she raises substantially the same grounds in the two Memoranda of Appeal dated 28th August 2017. The appellant contends in these grounds, among other things, that the learned Judge erred in fact and in law in failing: to appreciate that she lacked jurisdiction to reopen proceedings relating to grants of letters of administration that had already been concluded and confirmed by other judges of the High Court; to appreciate that there was no objection to the grant of letters of administration or confirmation of grant in the succession causes; to consider the statutory provisions of section 29 of the Law of Succession Act regarding dependants; treating the application before her as one for confirmation of grant rather than rectification; entertaining summons for rectification and/or amendment of grant when she lacked jurisdiction to annul or revoke a confirmed grant, and in invoking inherent powers of the Court contrary to the provisions of the Law of Succession Act; failing to appreciate that the facts and documents presented were sufficient to dispose of the applications, in treating inquiries directed by the Court as a condition precedent rather than subsequent to confirmation, and in making orders not prayed for, including directing searches in the Probate Registry at Leicester, England, without a legal or factual basis. * 1. While the appellant’s appeal had been filed by the firm of Abuotha & Co Advocates, she filed submissions in both appeals dated 25th January, 2018 and appeared before us in person at the hearing of the matter. She submits that the High Court had no jurisdiction to reopen succession matters that had been concluded by other judges; that no party had objected to the original grants; and that the court ought to have considered section 29 of the Law of Succession Act with respect to dependants’ claims in making its decision. She further argues that the court mistakenly treated her summons as one for confirmation; which she says is beyond her application, rather than for rectification as she sought; that no tribunal may annul or revoke a confirmed grant under the Act; and that it was wrong to invoke the court’s inherent jurisdiction in a way that frustrates the statutory regime. 2. The applicant further contends that the evidence she placed before the court should have sufficed to resolve her claim; that the court should not have imposed certain inquiries, such as searches abroad, as preconditions, and that it went beyond what was prayed by making new orders, like directing searches at Leicester without justification. The applicant asks this Court to set aside the High Court ruling in respect of the two matters and grant the orders sought. * 1. This is a first appeal from a ruling of the High Court which had been called upon to deal with four applications for rectification or amendment of grant. In keeping with our mandate as a first appellate court as enunciated in Selle v Associated Motor Boat Co. Ltd [1968] EA 123 and Jabane v Olenja [1986] KLR 661), in considering the appeal, we have perused the record and noted the matters that were before the court, and further, noted prior orders of the court. In this regard, we note that the appellant had applied for grant of letters of administration of the estates of the deceased in all the four succession causes. The grants related to the same property. The grants had been confirmed together by Ougo J., sitting in the Family Division of the High Court, on 30th November 2016. 2. Section 74 of the Law of Succession Act provides for rectification of grant in the following terms: ***Errors in names and descriptions, or in setting out the time and place of the deceased's death, or the purpose in a limited grant, may be rectified by the court, and the grant of representation, whether before or after confirmation, may be altered and amended accordingly.*** 1. This is the provision that the appellant had approached the court under, having noted, as she avers in her affidavits in support of the applications, that the names in the certificate of title of the estate property differed from the names she had used while applying for the grant and confirmation thereof, which were the names indicated in the deceaseds’ death certificates. 2. The appellant has made submissions suggesting that the learned Judge was biased and conducted the proceedings in a manner that violated her right to a fair hearing in declining to grant her applications, invoking the principles of nemo judex in causa sua and audi alteram partem. She alleges that during the hearing of her applications, she was ‘interrogated under duress’, and her counsel was not afforded an adequate opportunity to represent her. We have perused the record and noted that such interrogation, if it did occur, is not captured on the record, so there is nothing before us that indicates a personal interest on the part of the judge. 1. The appellant further argues that she is a person with a disability and the court failed to accord due regard to her condition, thereby infringing her constitutional rights. We note that the court did make some remarks about the appellant’s averments that she was a person with disability. While we view these remarks as uncalled for, nothing turns, or turned before the High Court, on the appellant’s condition, so we will say no more about them. 2. The appellant argues that the High Court lacked jurisdiction to reopen proceedings or annul a confirmed grant. Her contention in this regard is grounded on the conclusions of the judge at paragraph 13 of the ruling where the learned judge states that: ***“In the circumstances of this case, in particular the fact that there are other members of the family who have a valid claim to the estate, no grant can or should have been confirmed without notice to them or their express release of their shares. In the alternative, the only way the Applicant could hold the property would be as ONE of the trustees for the family and its members. The matter requires further inquiry before it is finally resolved.”*** 1. Contrary to the appellant’s contention, the learned judge did have power, under section 76, to revoke the grant or confirmed grant in the circumstances provided in the said section, which states that: *A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—* * 1. *that the proceedings to obtain the grant were defective in substance;* 2. *that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;* 3. *that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently; …* 12. Two of the four orders granted by the court were procedural, requiring service of the grants issued in the matter to parties the court deemed to have an interest in the estates, and for the matters to be heard together. The fourth was a somewhat unclear order relating to costs. It is the third order, we believe, that was of most concern to the appellant as it prohibited ‘all dealings in the property.’ The appellant was before the court seeking rectification of the grants and certificates of confirmation thereof in respect of the names of the deceased and the property registered in their names. Effectively therefore, in prohibiting dealings in the property and directing that parties in Leicester be served and searches for other grants issued in the United Kingdom be conducted before the matter could be ‘finally resolved’, the court, effectively, revoked the grants and certificates of confirmation issued to the appellant. 1. The question is whether, in the circumstances of this case, the learned judge exercised her powers properly in, effectively, on her own motion, revoking the grants that had been issued in the four succession causes by judges of concurrent jurisdiction. 2. The record indicates that the appellant had placed before the court information indicating that all the deceased persons and their families had emigrated to the United Kingdom in 1972, and were resident in Leicester. The death certificates filed in court indicated that the deceased had all died in Leicester, their deaths being notified to the Death Registry by their children. The appellant was a granddaughter of Rehmat Ali Sheikh, so that the other deceased, Abdul Rashid Sheikh, Noor Mohamed Sheikh and Hussein Bibi, - were her uncles and aunt by marriage, respectively. The record also indicates that the appellant’s husband, Mohamed Akram Sheikh, is her cousin, a grandson of Rehmat Ali. 1. From the record, this information was before the court when it issued the grants, and when the grants were confirmed by Ougo J. on 30th November 2016. We note from the record that when the matters came up before the Court, Ougo, J. considered the documents on the record, including the consents filed, before issuing orders confirming the grants. 2. It seems to us, then, that in the circumstances, in the absence of an application seeking revocation of the grants and certificates of confirmation of grant under section 76, the learned judge was in error in re-opening the matters when dealing with an application for rectification of the grants to correct the names and the title held by the deceased to whose estates the matters related. 3. We are therefore satisfied that the appeal is merited, and we hereby allow it. We set aside the orders of the High Court issued on 15th June 2017 and remit the applications dated 10th March 2017 in the four succession causes to the High Court for hearing and determination on their merits. 4. In view of the nature of this appeal where there is no respondent, no order with regard to costs can issue. **Dated and delivered at Nairobi this 11th day of September, 2026** **D. K. MUSINGA (P)** **…………………………………..** **JUDGE OF APPEAL MUMBI NGUGI** **………………………………..** **JUDGE OF APPEAL** **G. V. ODUNGA** **………………………………..** **JUDGE OF APPEAL** *I certify that this is a true copy of the original.* ***Signed DEPUTY REGISTRAR***