[2022] KEHC 11261 (KLR)

In re Estate of Balkrishna Ramji Haribhai Devani (Deceased) (Succession Cause E623 of 2020) [2022] KEHC 11261 (KLR) (Family) (13 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11261 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Family

Succession Cause E623 of 2020

M Thande, J

May 13, 2022

Between

Dinta Devani Pathania

Applicant

and

Kalpa Krishon Chandarana

1st Respondent

Babu Dalpatrai Kalida Mehta

2nd Respondent

Sundeep Kantilal Raichura

3rd Respondent

Ruling

1. The Application before Court is dated 6. 8.21, in which the Applicant seeks the following orders;1. Spent.

2. That the orders made on the 12. 7.21 by Hon. Justice Stella Mutuku be varied, set aside and/or vacated forthwith unconditionally.

3. That the Honourable court be pleased to order this matter be heard by way of sworn affidavits.

4. That the appropriate orders be made and the costs of the application be provided for.

2. The grounds upon which the Application is premised are that the order made on 12. 7.21 by Mutuku, J., to have this matter heard by way of viva voce evidence in open Court is grossly prejudicial to the Applicant. According to the Applicant, the said order was made suo moto without any prompting by any party or any application to cross examine the affiants on any of the affidavits sworn and produced before this Court; that the order exposed extreme bias on the part of the Judge and ought to be set aside as it is baseless and unfounded; that Sudhagauri Balkrishna Ramji Devani is the only recognised and sanctioned executor of the estate of Balkrishna Ramji Haribhai Devani (the deceased); that Babu Dalpatrai Kalidas Mehta and Sundeep Kantilal Raichura, the 2nd and 3rd Respondents are strangers and not members of the family of the deceased and their masquerade as executors of the estate is unwarranted, contemptuous, irregular and illegal; that they know nothing about the life and personal affairs of the deceased; that they do not even know the deceased’s personal cook of over 20 years; that the estate of the deceased has already been distributed to the 3 beneficiaries and none of them has complained about the manner in which it was distributed. The Applicants contended that if the orders sought are not granted, she and the estate of the deceased risk grave peril and detriment and she shall suffer irreparable harm and prejudice and the due process of law will be brought into disrepute.

3. Kalpa Chandarana one of the 3 daughters of the deceased opposed the Application by her grounds of opposition dated 11. 3.22. Kalpa contended that the Application is frivolous and vexatious; that owing to the conflicting nature of the affidavit evidence adduced by the parties, the matter cannot be heard by way of affidavit evidence; that the directions were issued in the best interests of the parties and for the just and expeditious disposal of the applications dated 2. 11. 2020 and 14. 4.21; that the issues of forgery and fraud raised in the affidavits cannot be resolved through affidavit evidence; that there is a Will dated 3. 6.19 produced by the Petitioners and an alleged Codicil dated 5. 6.19 produced by the Applicant, which cannot be proved without viva voce evidence; that the Applicant has colluded with strangers and disposed of and or intermeddled in the deceased's estate and therefore, it is imperative that the matter be heard viva voce. She urged that the Application be dismissed.

4. I have considered the Application, response and submissions filed by the parties. The only issue for determination is whether the directions issued by Mutuku, J. on 12. 7.21 should be set aside.

5. For the Applicant, it was submitted that the learned Judge erred in making the order in question, suo moto which is not only impracticable but bespeaks detriment to the affiants herein and to the entire estate and wishes of the deceased. It was further argued that the principle of natural justice requires that a party receives a fair hearing before a decision is visited upon them. The cases of Onyango Oloo v Attorney General[1986-1989] EA 456, Political Parties Dispute Tribunal & Anor v Musalia Mudavadi & 6 Others [2014] eKLR and Pashito Holdings Ltd & Another v Paul Nderitu Ndungu & Others Civil Appeal No. 138 of 1997 [1997] 1 KLR (E&L) were cited to buttress the submission.

6. For the 3rd Respondent, it was submitted that no suo moto order was made on 12. 7.21. All 3 parties were present and that it is false and unbelievable for the Applicant to allege that she was not heard prior to the making of the orders in question. The 3rd Respondent relied on Rule 17(6) of the Probate and Administration Rules which provides:“If within the period specified in subrule (5) the objector has filed in the registry in the proper form an answer to the petition for a grant, together with a petition by way of cross-application for a grant to himself, the registrar shall refer the matter to the court for directions, and shall notify the petitioner and the objector of the time and place set for the hearing of the petition, answer and cross-application."

7. A look at the rule makes it quite clear that the same is irrelevant herein. Rule 17 as a whole deals with objections, answers and cross-applications, which is not what is presently before the Court.

8. As I considered this Application, I had occasion to look carefully at the record. It reflects that on 12. 7.21, the Applicant’s counsel sought to dispose of the 2 applications by way of submissions with each party being given 21 days. On his part, counsel for the 1st Respondent stated that due to the nature of the orders sought, he prayed for viva voce evidence and further prayed for a date for hearing. The learned Judge directed:“Given the nature of the issues being raised this matter shall proceed by way of viva voce evidence. Hearing on 25/10/2021 at 10. 30 am."

9. Contrary to the Applicant’s assertion that the said order was made suo moto without any prompting by any party, the record shows that the 1st Respondent did in fact ask for viva voce hearing. Notably, the Applicant’s counsel, being present, had the opportunity to oppose the application for viva voce evidence before the order was made, but did not do so. The Applicant cannot therefore be heard to say that she was not given an opportunity to be heard. Accordingly, the authorities cited by the Applicant in support of her submission in this regard, are not useful.

10. Rule 54 of the Probate and Administration Rules makes provision for evidence as to due execution of written will. Rule 54(4) provides:If the court, after considering the evidence—(a)is satisfied that a written will was not duly executed, it shall refuse probate and shall mark the will accordingly;(b)is doubtful whether the will was duly executed, it shall make an order for hearing and give such directions in regard thereto as it deems fit.

11. In the present case, the issue of the due execution of the codicil produced by the Applicant is in question. This being the case, it was necessary for the Court to make an order for hearing and further to give directions in regard thereto as it deemed fit. Surely, the Court cannot be faulted for making an order for viva voce hearing.

12. The Court recognises that there are instances where affidavit evidence will be sufficient to determine a case. There are other cases however, where the issues in contention are such as require viva voce evidence. In the case of In re Estate of Alfred Wandanda Wanganya (Deceased) [2019] eKLR, Musyoka, J stated:I note that the parties hereto opted for the easy way out, written submissions, yet the issues are convoluted and required to be determined by way of oral evidence. In highly contested matters, such as the present one, disposal should be by way of viva voce evidence. The averments of the parties made in their respective affidavits ought to be subjected to cross-examination for all the contested issues to come out clearly. Parties and counsel owe it to the court to do everything to bring out all the issues, and that best happens when some of these matters are subjected to oral hearing, where the court can seek clarifications from the parties if need be.I accordingly hereby direct that the said summons shall be disposed of by way of oral evidence to be adduced on dates to be given at the delivery of this ruling.

13. Looking at the applications dated 2. 11. 2020 and 14. 4.21 and the responses thereto, it is evident that the contested issues include whether the deceased had, on account of his illness, the mental capacity to sign the will and codicil; whether the widow of the deceased and Mithal did in fact witness the codicil; who prepared the typed codicil; whether the deceased had devolved all his assets to his beneficiaries. There are also allegations of forgery and fraud. These are issues that can only be canvassed by way of viva voce evidence. Affidavit evidence will not be adequate. Clearly, the learned Judge was keenly aware of this and hence her order. After considering the evidence before her, the learned Judge exercised her discretion and gave the directions as to hearing as she deemed fit, to wit, hearing by way of viva voce evidence.

14. The Court notes that the Applicant contended that the order in respect of which she seeks the setting aside, exposed extreme bias on the part of the Judge. No evidence was adduced in this regard. The allegation of “extreme bias” is therefore not only unfounded but also unfortunate.

15. When a Court is confronted with convoluted issues such as in the present case, affidavit evidence will not suffice. It must be noted that it is the Court that will ultimately determine the matter before it based on the evidence adduced. It is the Court therefore, that has the final say as to how a matter will be canvassed before it and how evidence will be adduced.

16. The Applicant submitted that the deceased and Sudhagauri are irrefutably vital to these proceedings yet they are deceased. Further Mithalal Rawal the deceased’s cook of 20 years who witnessed the codicil has relocated to India and it “would be improper and a task of gargantuan proportions to compel him to attend these proceedings viva voce”. This is a curious submission. A maker of a will cannot and has never, for obvious reasons, been a vital witness in a case where his will is contested! Further, any evidence by Sudhagauri who is now deceased will be dealt with in accordance with the law. As for Mithal who is said to be in India and that it would be a gargantuan task to get him to attend the proceedings, the Applicant should be advised that Mithal’s evidence can now be taken virtually. Accordingly, I find that the Applicant’s submissions in this regard are not persuasive.

17. I now turn to the Applicants submissions that the 2nd and 3rd Respondents are strangers to the suit. The Applicant contended that there is plausible connivance between the 1st Respondent, a beneficiary of the estate of the deceased and the other Respondents. With respect, these are issues that cannot be dealt with herein. The application before me for the setting aside the order that the matter herein be disposed of by way of viva voce evidence. To delve at this stage into the issue as to whether the 2nd and 3rd Respondents are or are not executors of the Will of the deceased or that the 1st Respondent has connived with them, will be to pre-empt the main matter.

18. In view of the foregoing, I find that the Application dated 6. 8.21 lacks merit and the same is hereby dismissed. Costs in the cause.

DATED, SIGNED AND DELIVERED IN NAIROBI THIS 13TH DAY OF MAY, 2022. .....................................M. THANDEJUDGEIn the presence of: -........................ for the Applicant........................ for the 1st Respondent........................ for the 2nd & 3rd Respondents........................ Court Assistant