[2021] KEHC 13481 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

FAMILY DIVISION

MISC APPLICATION NO. E011 OF 2020

IN THE MATTER OF THE ESTATE OF ALIHADI DAFILLA ALI (DECEASED)

MERCY NJOKI aka

FATUMA MERCY NJOKI.................................PETITIONER/APPLICANT

VERSUS

KENYA COMMERCIAL BANK LIMITED...........................RESPONDENT

RULING

(1) Before this Court is the summons dated 8th July 2020by which the Petitioner/applicant MERCY NJOKI aka FATUMA MERCY NJOKI seeks the following orders:-

“1. Spent.

2. THAT the Respondent be and hereby ordered to allow thePetitioner immediate access to the deceased’s Estate bank account No. 110xxxxxxx as per the orders of the Succession Court issued on 5th March 2019 and the certificate of confirmation of grant issued on 13th March 2019 by the Kadhi’s Court in Lamu Succession Cause No. 8 of 2019.

3. That there be an order allowing the Petition to withdrawfunds from the deceased’s estate account No. 110xxxxxxx as a beneficiary and heir of the deceased’s estate.

4. That the Respondent be and is hereby ordered to avail to the Petitioner the current statement of accounts of the Deceased’s estates account No. 110xxxxxxx.

5. That the Honourable Court be at liberty to issue further directions in this matter as it deems fit and necessary.

6. That costs of this Application be provided for.”

(2) The summons was premised upon section 35 (1) (a) & (b)and section 47 of the law of Succession Act, Cap 160, Laws of Kenyaand Rule 73of the Probate & Administration Rules and all other enabling provisions of law, and was supported by the Affidavit of even date and the supplementary affidavit dated 3/11/2020 Sworn by the Applicant.

(3) The Respondent opposed the summons through their Replying Affidavit dated 10th February 2021,sworn by ANNE WAIRIMU THAIRU – NJUAthe Centre Manager Advantage Banking at Kenya Commercial Bank. The summons was canvassed by way of written submissions. The Applicant filed the written submissions dated 12th July 2021. The Respondents relied upon their written submissions dated21st July 2021 whilst the Applicant filed submissions dated 11th August 2021 in response to the Respondents submissions.

BACKGROUND

4. This matter concerns the estate of one ALIHADI DAFILLA ALI(hereinafter ‘the Deceased) who is said to have passed away atKenyatta National Hospitalon 17th January 2017. The Applicant avers that she got married to the Deceased in Nakuru on 4th February 2010,having converted to Islam on 8th December 2009. The Applicants position is that she, as the only widow of the Deceased and the minor AZDare they only survivors of the Deceased.

5. The Applicant averred that following the demise of the Deceased she applied for and obtained letters of Administration intestate on5th March 2019from the Kadhi’s Court in Lamu vide Succession Cause No 8 of 2019. The said letters of Administration were duly confirmed on 13th March 2019.

6. The Applicant contends that on the basis of the confirmed Grant she proceeded to the Kenya Commercial Bank, seeking to be granted access to the Deceased’s Bank Account. That the Respondent denied her access to said account and instead caused her to be arrested by the Banking Fraud Unit alleging that the documents presented to the Bank staff specifically the Death Certificate in respect of the Deceased were fraudulently obtained. Thereafter on 15th March 2019the Applicant was charged with a criminal offence of forgery and uttering false documents at the Milimani Chief Magistrate’s court vide CMCC No. 473 of 2019.

7. The Applicant pleads that she is in dire need of the funds held in the Deceased’s account to enable her cater for the needs of herself and the minor, who are the heirs of the estate of the Deceased. She submits that the Grant issued to her by the Kadhi Court in Lamu has never been challenged and/or revoked. That there is no dispute that the money held in the account belongs to the Deceased. Finally, the Applicant argues that if the Respondent’s Bank is permitted to persist in denying her access to the said account then she and the minor will be prejudiced as they will be denied benefits rightfully bestowed upon them by a competent court.

8. The Respondent Bank opposed the application. It was averred for the Respondent that upon presentation of the court orders issued by the Kadhi Court in Lamu together with a copy of the Death Certificate of the Deceased the Bank as was required conducted due diligence to determine the authenticity of the documents presented to it.

9. The Respondent confirmed that the Deceased did indeed hold an account with their [Particulars Withheld] Branch. However, although the Deceased is alleged to have died in January 2017according to the Bank, the Deceased’s account had continued to be operational upto December 2020. That the said account was still being operated by a person purporting to be Alihadi Dafilla Ali (the Deceased herein). Therefore the Respondents suspected that the Deceased was still alive, and that a fraud was being perpetrated against the account in question.

10. The Respondent immediately reported the matter to the Banking Fraud Unitto investigate. Upon conclusion of investigations by police the Applicant was arrested and was charged with forgery and uttering false documents. The criminal trial is still ongoing.

11. The Respondent submits that given the above circumstances they were justified in denying the Applicant the Deceased’s account. They submit that the present application is defective, bad in law and is frivolous, vexatious and an abuse of court process. They urge the court to dismiss the application it its entirety.

Analysis and determination

12. I have carefully considered the application before this court, the Replying Affidavit in response thereto as well as the written submissions filed by both parties. The only issue for determination is whether the Respondent bank should be ordered to provide the Applicant with immediate access to the account in question and allow her to withdraw funds from the said account.

13. The fact of the existence of an account No. 110xxxxxxx in the name Alihadi Dafilla Aliexists at Kenya Commercial Bank,(hereinafter the ‘Subject Account’) is not in any dispute. The Respondent bank concedes that the Subject account exits.

14. The Applicant avers that she professes the Islam faith having converted to Islam on 8th December 2009. Annexed to the Supporting Affidavit dated 8th July 2020 is her certificate of conversion to Islam (annexture ‘MN-I’). The Applicant further avers that she got married to the Deceased under Islamic Law on 4th February 2010. She has annexed to the same Supporting Affidavit a copy of her certificate of marriage (Annexture ‘MN-2’). That the union was blessed with one child a daughter named AZD(hereinafter ‘the minor’)

15. The Applicant stated that the Deceased passed away on 17th January 2017and was survived by herself and the minor. She has annexed to her Supporting Affidavit a copy of the Death Certificate (‘MN – 3’).On the basis of this Death Certificate the Applicant filed succession proceedings at the Kadhi’s Court in Lamu and obtained letters of Administration issued in her favour on 5th March 2019. Based on the certificate of confirmed Grant dated 13th March 2019(Annexture ‘MN – 5’), the Applicant claims the right to access and withdraw funds held in the Deceased account at the Respondent Bank.

16. The Respondent on the other hand query the fact of Death of the Deceased. They aver that though Alihadi Dafillais said to have died in January 2017the accounts in his name has continued to be operated by a person(s) claiming to be the Deceased from January 2017 to December 2020. For this reason, the bank involved the Banking Fraud Unit who upon investigating caused the arrest and charging of the Applicant for the offence of fraud.

17. It is not the duty of this court to determine the validity or otherwise of the criminal charges laid against the Applicant. That is a matter to be determined solely by the trial court. However, there are certain anomalies which arise in the matter to which this court cannot just turn a blind eye.

18. Firstly the court questions the validity of the Death Certificate which the Applicant seeks to rely on as proof of the Death of her husband. In the Kadhi’s Court in Lamuthe applicant presented as proof of death a certificate serial number 654623(Annexture ‘MN-3’) which Death Certificate indicates that the Deceased died at the Kenyatta National Hospital on 17th January 2018. This Death Certificate indicate that the Deceased died in January of 2018whilst in her supporting Affidavit the Applicant has averred that her husband passed away on January of 2017 - which is the correct position?

19. When the Applicant appeared before the Bank officers at the [Particulars Withheld] Branch she presented a different death certificate being Serial Number 436630 indicatingthe date of death as17th January 2018. The question that immediately springs to mind is why do there exist two different death certificates for the same person. Secondly, why did the Applicant present the death certificate Serial No. 654623before the Kadhi Court in Lamu yet she presented a totally different Certificate being serial number 436630 in her attempt to gain access to the Subject account.

20. The Applicant attempted to explain this anomaly by stating that following the demise of her husband she requested an agent to assist in acquiring the Death Certificate, which Death Certificate Serial No. 654623was used to obtain the Grant from the Kadhi Court in Lamu. That it was only after her arrest that the Applicant realized that the Death Certificate given to her by said agent was a forgery and had not been issued by the Registrar of Births and Deaths.

21. The Applicant then went about obtaining the second death Certificate being serial No. 4366303 which she presented to the Respondent Bank demanding access to the account of her late husband.

22. This explanation far from being satisfactory only serves to raise further questions. It is manifest that the Grant issued to the Applicant by the Kadhi court in Lamu was by the Applicants own admission issued on the basis of a forged death certificate. How then can that Grant be said to be valid and enforceable. I have no doubt that had it been disclosed to the Hon Kadhi that the Death Certificate which had been presented to him was a forgery then the Kadhi would not have issued the Grant to the Applicant.

23. The Applicant cannot simply discard the forged Death Certificate, substitute it with another Death Certificate and then proceed to the Bank demanding that she be allowed access to the account. The fact of the matter is that the Grant issued to the Applicant in Lamu was premised on a forged Death Certificate. As such said Grant is invalid and cannot be enforced. The proper procedure would be for the Applicant to seek a fresh Grant on the basis of the new Death Certificate that she has now obtained. She cannot be allowed just to substitute a Death Certificate and purport that it is genuine without necessary enquiry being conducted. Accordingly, the Grant issued to the Applicant in Lamu which by the admission by the Applicant herself, was obtained on the premise of a forged Death Certificate, is null and void and therefore unenforceable.

24. It is trite law that curt orders must be obeyed. In the ordinary course of events a valid Grant issued to the Applicant would have been enforceable as against the Respondent bank. However the validity of the Grant issued to the Applicant has been put in serious question through the admission by the Applicant herself that said Grant was issued on the basis of a forged Death Certificate.

25. Section 76of the Law of Succession Act Cap 160 Laws of Kenyaprovides for the circumstances under which a grant may be revoked by the court. Section 76provides as follows:-

“A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application or by an interested party or of its own motion-

(a) that the proceedings to obtain the grant were defective in substance.

(b) 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;

(c) that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justice the grant notwithstanding that the allegation was made in ignorance or inadvertently;

(d) ……………..” (own emphasis)

26. It is manifestly clear that the Grant issued to the applicant by the Hon Kadhi in Lamu was obtained by the making of a false statement. As such, the proceedings before the Hon Kadhi were defective in nature. This court will not enforce the Grant given the circumstances under which said Grant was obtained.

27. This court also cannot ignore the fact that the Applicant is currently facing criminal charges in respect to the said forged death certificate. The Applicant has conceded that she is facing charges vide Milimani CMCC No. 473 of 2019.

28. In her supplementary Affidavit dated 3rd November 2020 the Applicant atparagraph 9 deponesas follows–

“THAT I was not privy to nor did I take part in any acts of forging, uttering the deceased’s death certificate or the birth certificate for my daughter and I will prove during the hearing of the criminal matter that I am innocent of all the charged levelled against me”

It is clear that the question of whether or not the Applicant was involved in the forgery of documents used to obtain the Grant issued by the Kadhi court in Lamu is one which is yet to be determined in the criminal trial.

29. In the circumstances acting suo moto this court hereby revokes the letters of Administration issued to the Applicant on5th March 2019in respect to the estate of ALIHADI DAFILLA ALI.The certificate of confirmed Grant dated 13th March 2019 is similarly revoked. The summons dated 8th July 2020 is dismissed in its entirety. Each party to bear its own costs.

DATED IN NAIROBI THIS 15TH DAY OF OCTOBER, 2021.

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MAUREEN A. ODERO

JUDGE