[2018] KEHC 3197 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

SUCCESSION NO. 346 OF 2013

IN THE MATTER OF THE ESTATE OF ABDULKARIM CHATUR POPAT

also known asABDUL KARIM CHATURBHAI

ASLNASHIR ABDULKARIM CHATUR POPAT......BENEFICIARY/APPLICANT

VERSUS

ADIL ABDULKARIM CHATUR POPAT.....................................1ST RESPONDENT

GULZAR ABDULKARIM CHATUR POPAT............................2ND RESPONDENT

KARIM SAIFUDDIN ANJARWALLA.........................................3RD RESPONDENT

AZIM ABDULKARIM CHATUR POPAT...................................4TH RESPONDENT

RULING

1. The brief background facts of this matter are that Abdulkarim Chatur Popat also known as Abdul Karim Chaturbhai (the Deceased) died on 2. 3.13 at the Aga Khan Hospital in Nairobi at the age of 87. He was survived by his widow Gulzar Abdulkarim Chatur Popat (Gulzar) and 3 sons namely, Azim Abdulkarim Chatur Popat (Azim), Adil Abdulkarim Chatur Popat, (Adil) and Alnashir Abdulkarim Chatur Popat (Alnashir). The Deceased left a vast estate and a will dated 15. 5.08 (the Will), in which he named Gulzar, Azim, Adil and Karim Anjarwalla (Karim) as executors. In the Will, the Deceased made provision no provision for his son Alnashir. Grant of Probate of Written Will was issued to the executors on 29. 1.14 and confirmed on 20. 11. 14.

2. By a Summons dated 28. 7.15, Adil, Gulzar and Karim sought orders that Azim who resided in Canada be compelled to execute various documents in respect of the distribution of the estate. It was alleged that Azim had failed to carry out this duty as one of the executors of the Will thus frustrating the distribution of the estate. In his replying affidavit sworn on 1. 11. 15 and filed on 11. 11. 15, Azim averred that Adil had placed him under financial pressure, details of which are stated therein, and through undue influence compelled him to sign the affidavit in support of the confirmation of the Grant. Contemporaneously, Azim filed Summons for Revocation of Grant on grounds that the same was obtained fraudulently by making of a false statement and concealment of something material to the case. He further stated inter alia that the Will excluded some assets of the estate and did not provide for Alnashir. He further accused Adil of influencing Karim to draw a will that was significantly skewed in favour of Adil. The Court urged the parties who are siblings to pursue mediation with a view to settling the matter.

3. While the 2 applications were still pending, Alnashir filed an application dated 9. 9.16 (the Application). He seeks the following orders:

1. Spent

2. On account of its nature and the Orders sought therein, this Application be heard in priority to the other Applications pending in this matter, namely the Summons dated 28th July, 2015 taken out by the 1st, 2nd and 3rd Respondents and the Summons for Revocation of Grant dated 1st November, 2015 filed by the 4th Respondent.

3. THAT ALNASHIR ABDULKARIM CHATUR POPAT a dependant and a beneficiary of the estate of Ms late father, ABDULKARIM CHATUR POPAT ("the deceased") be enjoined as a party to these proceedings.

4. THATthis Honourable Court be pleased to enlarge time within which the Applicant should file an Application for reasonable provision and to grant leave to the Applicant to file the Application within such time as the Court may stipulate.

5. THATconsequent upon grant of Order No. 4 above, this Honourable do give directions as to the filing and hearing of the substantive Application to be filed under section 26 of the Law of Succession Act and Rule 45 of the Probate and Administration Rules.

6. THATconsequent upon the filing and. hearing of the substantive Application referred to in Order No. 5 above, this Honourable court be pleased to review the following.

a) The terms of the Grant of Probate of Written Will issued herein on 29th January, 2014.

b) The terms of the Certificate of Confirmation of Grant dated 2nd December, 2014.

7. THAT to enable the Applicant to make the Application for reasonable provision referred to in Order No. 5 above, and to participate meaningfully in these proceedings, an Order be issued directed at the Respondents as the personal representatives of the deceased and in particular the Is' and 2nd Respondents, for the discovery, production under oath and inspection, within such time as the Court shall stipulate, of all the documentation, statements and records pertaining to all the assets of the estate of the deceased including all the assets located in Kenya and elsewhere in the world, the assets named in the Last Will and Testament of the deceased, dated 15th May, 2008 ("the Will") and all the assets comprised in the residuary estate of the deceased.

8. THAT Orders do issue compelling the Respondents as the Executors and Trustees of the Will and as personal representatives of the estate of the deceased, to perform each of the statutory duties set out below within such periods of time as this Honourable Court shall stipulate:-

a) Produce to this Court a full and accurate inventory of the assets and liabilities of the deceased and full and accurate accounts of all dealings therewith up to the date of the account.

b)Subject to the Court's determination of the pending Applications, to complete the administration of the estate of the deceased in such manner as the Court shall direct in respect of all matters other than continuing trusts, and to produce to the Court a full and accurate account of the completed administration.

9. THAT this Honourable Court be pleased to issue such Orders and Directions as will ensure an effectual, expeditious and final determination of all the issues raised in these proceedings including:-

a)Pre-trial directions and conferences pursuant to Order 11 of the Civil Procedure Rules, 2010.

b)Orders for cross-examination of the respective deponents of the various Affidavits filed in these proceedings.

10. THATthis Honourable Court be pleased to grant such other or further Orders and/or issue such Directions as it shall deem fit and just having regard to the nature and circumstances of this matter.

11. THAT the costs of and incidental to this Application be provided for.

4. Alnashir filed another application dated 28. 3.17 seeking inter alia preservation of the estate of the Deceased and disclosure by Anil and Azim of any settlement agreement that may have been reached between them. The Court did on 6. 6.17 order that status quo be maintained.

5. Adil, Gulzar and Karim filed a Notice of Preliminary Objection dated 16. 5.17. Their objections are that:

i) The application for provision as a dependant having been brought after confirmation of grant is prohibited under Section 30 of the Law of Succession Act.

ii) The Court has no power to extend the time for filing the Application.

iii) Alnashir not being a beneficiary under the Will thus he has no locus standi to file the Application.

6. Alnashir filed Grounds of Opposition dated 31. 5.17 challenging the Preliminary Objection. The grounds are that the Preliminary Objection does not raise pure points of law and is predicated on contentious facts; it will not dispose of the pending applications but will result in a lengthy costly process; it is premised on a narrow and restrictive interpretation of locus standi principle; it disregards the fundamental rights guaranteed under Articles 35, 40 and 48 of the Constitution of Kenya, 2010; A full hearing is required to determine dependency and entitlement of Alnashir; important issues before the Court are of such far reaching consequences that the same cannot be disposed of by way of the Preliminary Objection.

7. Directions were given that the Preliminary Objection be disposed of first by way of written submissions and timelines were given for filing of the submissions. Submissions were highlighted before me by Mr. Pheroze Nowrojee, Senior Counsel, leading Mr. Oloo for Adil, Gulzar and Karim (the Respondents) while Mr. Njoroge Regeru submitted for Alnashir (the Applicant). Mr. Omuganda for Azim chose not to participate in the Application. The objection on the locus standi of the Applicant was abandoned at the outset. Being a son of the Deceased and a dependant the objection could not be sustained.

8. The Applicant being a son of the Deceased for whom no provisions was made under the Will seeks reasonable provision from the estate of the Deceased. He further complains that though he is a son and a dependant of the Deceased, he was not involved in the process of obtaining the Grant and the confirmation thereof which is contrary to the law.

9. Having considered the elaborate submissions by counsel I find that the issues for determination are:

a) Whether the Preliminary Objection meets the prerequisites of a valid preliminary objection.

b) Whether the Court has jurisdiction to entertain an application for provision of a dependent after confirmation of grant.

c) Whether the Court has jurisdiction to extend the time for filing an application for provision of a dependent.

10. Section 26 of the Law of Succession Act (the Act) which provides:

Where a person dies after the commencement of this Act, and so far as succession to his property is governed by the provisions of this Act, then on the application by or on behalf of a dependant, the court may, if it is of the opinion that the disposition of the deceased’s estate effected by his will, or by gift in contemplation of death, or the law relating to intestacy, or the combination of the will, gift and law, is not such as to make reasonable provision for that dependant, order that such reasonable provision as the court thinks fit shall be made for that dependant out of the deceased’s net estate.

Section 30 of the Act provides:

No application under this Part shall be brought after a grant of representation in respect of the estate to which the application refers has been confirmed as provided by section 71.

Whether the Preliminary Objection meets the prerequisites of a valid preliminary objection.

11. The prerequisites of a preliminary objection were set out by Sir Charles Newbold in Mukisa Biscuit Manufacturing Co. Ltd. v West End Distributors Ltd – (1969) EA 696. Mukisa Biscuit (Supra) when he pronounced himself thus:

The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of Preliminary Objection. A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion.

12. From the foregoing it is clear that a preliminary objection must raise a pure point of law. Secondly, a preliminary objection may not be raised if any fact needs to be ascertained. Finally a preliminary objection cannot be raised if what is sought is the exercise of judicial discretion.

13. It was submitted for the Respondents that the Preliminary Objection meets the threshold. The Respondents’ objection to the Application is based on the provisions of Section 30 of the Act. They contend that the Application which seeks extension of time to apply for provision, having been brought after confirmation of the Grant was time barred. They insist this is a pure point of law.

14. For the Applicant however, it was argued that the facts leading to confirmation of grant are contested facts that need to be ascertained. It is his contention that the law was not followed. The Applicant was not informed of the proceedings leading to the issuance of the Grant and the confirmation thereof. His consent was not sought nor was he present during confirmation as required by Rule 40(8) of the Probate and Administration Rules. It was submitted for the Applicant that there are issues that are subject to judicial discretion. The prayer of enlargement of time is subject to judicial discretion. Further that in considering a preliminary objection based on Section 30 of the Act, the Court is invited to exercise its judicial discretion as to whether the provision would fetter the Applicant’s fundamental right to access to justice enshrined in Article 48 of the Constitution.

15. Part III of the Act contains Sections 26-30 and is headed “PROVISIONS FOR DEPENDANTS”. Section 26 provides that a Court may on application make reasonable provision for a dependant who has not been reasonably provided from the estate of a deceased person. Section 27 grants the Court complete discretion to order a specific share of the estate to be given to the dependant. Section 28 provides for the circumstances to be taken into account by the Court in making an order. Section 29 defines a dependant while Section 30 prohibits the filing an application under the Part after confirmation of a grant of representation.

16. The fact of confirmation of the Grant on 20. 11. 14 is not disputed nor is the fact that the Application was brought on 13. 9.16. This is almost 2 years after the Grant was confirmed. Section 30 provides that an application under Part III of the Act such as the present application shall not be brought after confirmation of a grant of representation. To determine whether the Preliminary Objection meets the criteria set in Mukisa Biscuit, all that this Court is required to do is satisfy itself, which it has done, that the Application was filed after confirmation of the Grant. In the premises, the finding of this Court is that there are no facts that need to be interrogated or ascertained. Nothing herein calls for judicial discretion. The Preliminary Objection raises a pure point of law. I am therefore satisfied that the prerequisites of Mukisa Biscuit are met. Ouko, J (as he then was) in In Re Estate of James Githigi Gathura (Deceased) [2009] eKLR was of a similar view in his holding:

To the extend (sic) that the objection raised relates to the jurisdiction of this court to entertain this application after the confirmation of the grant it relates to a point of law which is capable of disposing of this application if successfully argued, in terms of the authority of Mukisa Biscuit Manufacturing Co. Ltd V. West End Distributors Ltd (1969) EA 698.

Whether the Court has jurisdiction to entertain an application for reasonable provision of a dependent after confirmation of grant.

17. It was submitted for the Respondents that the Application having been brought after confirmation of the Grant the same is prohibited under Section 30 of the Law of Succession Act (the Act). The Court therefore lacks jurisdiction to entertain the same. The Applicant on the other hand contends that if the Court were to adopt a strict interpretation of Section 30 of the Act then this would be akin to enhancing judicial formalism and dogmatism which approach offends the Constitution that the Court is mandated to uphold. It was further submitted that the Respondents’ arguments represent the narrow, old pre-Constitution of Kenya 2010 jurisprudence that a “Court’s jurisdiction must be pegged on some express provision in the Constitution or in some written law.” Nothing could be further from the truth. A Court’s jurisdiction is derived from the Constitution and/or statute. This was the case before the promulgation of the Constitution of Kenya 2010 and is still the case post the promulgation. The Supreme Court made this crystal clear in its holding in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR as follows:

“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law… the issue as to whether a Court of law has jurisdiction to entertain a matter before it, is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings…Where the Constitution exhaustively provides for the jurisdiction of a Court of law, the Court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation”

18. The wording in Section 30 is plain and simple. No application under part III of the Act shall be brought after a grant of representation in respect of the estate to which the application refers has been confirmed as provided by section 71 of the Act. Where an application is so brought after confirmation of a grant the Court would be devoid of jurisdiction to entertain the same. Further the Court cannot create or expand jurisdiction it lacks through judicial craft or innovation.

19. In Re Estate of James Githigi Gathura (supra), Ouko, J (as he then was) went on to state and I concur:

However, section 30 of the Law of Succession Act provides that no application under sections 26, 27, 28 and 29 can be brought after the grant has been confirmed.

On that ground alone, the objection is sustained and the application dated 20th March 2009 dismissed.

20. The Applicant has invited the Court to adopt a purposive interpretation of Section 30 of the Act to find that it has jurisdiction to entertain the Application which is expressly prohibited under Section 30 of the Act. In the cited case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others [2014] eKLR, the Supreme Court had this to say:

[167] In Pepper v. Hart [1992] 3 WLR, Lord Griffiths observed that the “purposive approach to legislative interpretation” has evolved to resolve ambiguities in meaning. In this regard, where the literal words used in a statute create an ambiguity, the Court is not to be held captive to such phraseology. Where the Court is not sure of what the legislature meant, it is free to look beyond the words themselves, and consider the historical contextunderpinning the legislation. The learned Judge thus pronounced himself:

“The object of the court in interpreting legislation is to give effect so far as the language permits to the intention of the legislature. If the language proves to be ambiguous I can see no sound reason not to consult Hansard to see if there is a clear statement of the meaning that the words were intended to carry. The days have long passed when courts adopted a strict constructionist view of interpretation which required them to adopt the literal meaning of the language. The courts now adopt a purposive approach which seeks to give effect to the true purpose of legislation and are prepared to look at much extraneous material that bears upon the background against which the legislation was enacted.”

21. The foregoing holding of the Supreme Court makes it clear that a purposive approach in interpretation of statute has evolved to resolve ambiguities in meaning. In the present case, the words in Section 30 do not create any ambiguity. It is clear that the legislature meant that no application under Part III of the Act shall be brought after confirmation of a grant of representation. It is not necessary therefore for the Court to look at much extraneous material that bears upon the background against which the legislation was enacted. It would appear that the Applicant is in effect asking this Court, to find through a “purposive interpretation” that Section 30 of the Act does not mean what it says. To do so would be assisting a party arrive at a desired result that is outside the law.

22. Section 30 of the Act expressly prohibits the bringing of an application under Part III of the Act after confirmation of a grant of representation. The Application herein having been brought after confirmation of the Grant is a prohibited application and thus incompetent. The Court is therefore devoid of jurisdiction to entertain the incompetent Application, the filing of which is prohibited by statute.

Whether the Court has jurisdiction to extend the time for filing an application for reasonable provision of a dependent.

23. The Applicant invites this Court to invoke its inherent jurisdiction to expand the time for filing an application for reasonable provision. It was contended that Section 30 must be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with the Constitution of Kenya 2010 as required by Section 7(1) of the Sixth Schedule of the Constitution. It was further argued that if the Court were to find that it had no jurisdiction by dint of Section 30 of the Act then such finding would be inconsistent with the broad and purposive interpretation that should be given to Articles 24, 40 and 48 of the Constitution.

24. The provisions of Section 26 of the Act did allow the Applicant who is excluded from the Will of his deceased father to apply to the Court for reasonable provision. However, the time for doing so is not open-ended. Section 30 limits the period to before confirmation of the Grant. The right to file such application and the period within which the same should be filed are conjunctive so that if the application is not filed within the period stipulated, the right to file the application is extinguished. The Applicant did not take advantage of the opportunity availed to him by Section 26 of the Act. In my view Section 30 does not in any way limit the Applicant’s fundamental rights (Article 24) nor violate or impede his fundamental rights to property and access to justice guaranteed under Articles 40 and 48 respectively.

25. The Applicant further submits that instead of Courts being preoccupied with whether any express provision in the Constitution or other written law gives them jurisdiction over a particular matter, they should inquire whether there is any express statutory provision which restricts their broad-based jurisdiction. The case of DHL Excel Supply Chain Kenya Limited v Tilton Investments Limited [2017] eKLR is cited to buttress this submission. The Court of Appeal stated as follows:

As we have illustrated hereinabove the right to appeal to this Court from a decision of the High Court can only be restricted by express statutory terms. Hence, the interpretation of the aforementioned sections ought to be made in the right context and in conformity with the Constitution. See the Supreme Court’s decision in Hassan Ali Joho & Another vs. Suleiman Said Shahbal [2014] eKLR and this Court’s decision in Narok County Government & Another vs. Richard Bwogo Birir & Another [2015] eKLR.

In our view, the fact that section 35 of the Act is silent on whether such a decision is appealable to this Court by itself does not bar the right of appeal.

26. The case is distinguishable. In that case, the Court was dealing with Section 35 of the Arbitration act which is silent on whether a decision is appealable to the Court of Appeal. In the instant case however, Section 30 expressly prohibits the bringing to Court, an application under Part III of the Act after confirmation of grant. To invoke this Court’s inherent jurisdiction to extend the time for filing an application that is expressly prohibited by statute would be tantamount to nullifying an express statutory provision. This was the holding in Odunga, J. in Wangui Kathryn Kimani v Disciplinary Tribunal of Law Society of Kenya & another [2017] eKLR:

The Court’s inherent jurisdiction, however, is not a substitute for the jurisdiction conferred upon the Court under the Constitution or by statute…It was therefore held in Elephant Soap Factory Ltd vs. Nahashon Mwangi & Sons Nairobi HCCC No. 913 of 1971 that the court will not invoke its inherent jurisdiction when there is an express provision dealing with the matter since the court may not nullify an express provision by invoking its inherent powers. Similarly, it is my view that where the Court has been deprived of jurisdiction it will not draw upon its reserve under the inherent jurisdiction to confer upon itself such non-existent jurisdiction.

27. An application brought under Part III of the Act after confirmation of grant is incompetent. This Court is devoid of jurisdiction to entertain such an application that ought not to be brought before it in the first place. It follows therefore that the Court lacks jurisdiction to extend the period set by Section 30 of the Act. As Odunga, J. observed, and I agree with him, that where as in this case the Court is deprived of jurisdiction it will not draw upon its reserve under the inherent jurisdiction to confer upon itself such non-existent jurisdiction. The Court cannot arrogate to itself jurisdiction not conferred upon it to extend the period for filing an application for provision after confirmation of Grant. (See Samuel Kamau Macharia case (supra).

28. No authority was cited by the Applicant nor do I know of any where a Court has allowed an application under Part III of the Act after confirmation of a grant of representation or extended the period set by Section 30 of the Act. The submissions by the Applicant that the Respondents breached the law by failing to involve him in the process of obtaining the Grant and the confirmation thereof may very well be valid. The Law of Succession Act has made adequate provision for the redress of such breach of the law. An application under Part III of the Act after confirmation of grant however cannot address such violation of the law.

29. In the final analysis, I find that this Court has no jurisdiction to entertain an application for provision by a dependant under Section 26 of the Law of Succession Act or any other application under Part III of the Act after confirmation of a grant of representation. Further this Court has no jurisdiction to extend the time set under Section 30 of the Act for filing such application. In the circumstances, I do uphold the Preliminary Objection dated 16. 5.17 and strike out the Application dated 9. 9.16 for being incompetent. This being a family matter, each party shall bear own costs.

DATED, SIGNED and DELIVERED in MOMBASA this 3rd day of August 2018

________________

M. THANDE

JUDGE

In the presence of: -

………………………………………………………… for the Applicant

……………………………………………………… for the Respondents

……………………………………………………..…….. Court Assistant