[2021] KEHC 8087 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

SUCCESSION NO. 14 OF 2020

IN THE MATTER OF THE ESTATE OF BHADRABALA AMRATLAL BHIMJI DAVDA (DECEASED)

RULING

1. The deceased herein died intestate on 24th December,2009 leaving behind a widower Amratilal Bhimji Davda, and her children namely; Sailesh Kumar Amratlal, (son) Jitendra Amratlal Bhimji Davda (son) Priya Anil Rawji (daughter) and Amritlal Bhimji Davda (daughter).

2. On 5th March, 2020, Sailesh Kumar Amratlal and Jitendra Amratlal Bhimji Davda petitioned for a grant of letters of administration intestate. Among the assets listed as comprising the estate are;

(a) Apartment No A-12 situated on the parcel of land of Mombasa/Block XI/1119

(b) Cash kshs 20,795,000 account No. [particulars withheld] held in Kenya Commercial Bank

(c) Ksh 6,000,000 held by the deceased’s advocates N.A. Ali & Company advocates from the sale of Mombasa /Block XVI/73 to pay for the purchase of Flat No A12 Moonlight apartment on Mombasa/Block XI/1119.

3. On the other hand, a sum of Ksh 6,000,000 was listed as a liability being the balance of purchase property in respect of the apartment No. A-12 Situated on Mombasa/Block XI/1119.

4. During the pendency of the petition application for a full grant, the petitioners moved this court on 5th March, 2020 vide a petition for a special limited grant of letters of administration for purposes of accessing a sum of kshs 6 Million held by the firm of N.A Ali and company advocates being the balance of the purchase price held by the said law firm for purposes of paying the vendor Moonlight luxury apartments limited in respect of an ongoing transaction in respect of the purchase of the apartment number A -12 situated at Mombasa/Block XI/1119.

5. On 6th May,2019, the court allowed the application as prayed. Subsequently, on 15th January,2021 the applicants/petitioners again moved the court vide a petition of special limited grant seeking to access a sum of kshs 15,000,000 held at the deceased’s account in Kenya Commercial Bank a/c no. [particulars withheld] for purposes of paying Oriental commercial Bank in settlement of a consented amount of 15 Million as per the consent in HCC No. 173 of 2006 between Amritalal Bhmji Davda and Sailesh Kumar T/A Babu Motors Vs Commercial Bank of Kenya.

6. That the said amount is intended to clear a debt owed by the estate to Oriental Commercial Bank who are about to exercise their statutory right of sale of the property charged to Oriental Commercial Bank.

7. The application is premised upon an affidavit sworn on 30th December, 2020 jointly by the petitioners. Besides the petitioners, their sister Anita Jagdish Rawji and Priya Anil Rawji have signed necessary consent.

8. During the hearing, Mr Hassan appearing for the petitioners urged that the application be allowed so as to safeguard the property due to auction anytime. He reiterated the averments contained in the affidavit in support of the application. Counsel informed the court that the estate has since been gazetted but a full grant has not been issued.

9. From the record, the principal Registry on 28th September, 2020 issued a certificate under form 30 confirming that there was no other cause ever filed in respect of the same estate.

10. Although Mr. Hassan stated that the estate was gazetted, I could not see any copy in the court file. Assuming that what Hassan is telling the court is correct, then, it is not necessary to issue a limited grant anymore as a full grant shall issue after the expiry of 30 days from the date of gazettement.

11. In the circumstances of this case, the urgency to issue a limited grant does not apply as the full grant is due to be issued any time. Issuance of a special limited grant is limited to situations where it is not possible within the shortest time possible to obtain a full grant for certain activities to be undertaken. The court therefore should only issue a special limited grant as the word suggests if there are exceptional circumstances that will not await a full grant.

12. Since a full grant is ripe if the said gazette notice is availed subject to expiry of 30 days, I do not see the need of issuing a special grant. Courts should exercise caution not to abuse the powers of issuing special grants even when a full grant is actually due to be issued.

13. Having held as above, I will decline to issue a special limited grant. There has been sufficient time since March, 2020 to process for a full grant. However, owing to the prayer to access some cash in the account of the deceased to settle a debt in a civil case, I will advise that upon obtaining a full grant, I will consider the issue of accessing the said account before confirmation of the grant, or in the alternative parties shall be at liberty to move the court to confirm the grant the expiry of six months notwithstanding for the convenience and expediency of settling the debt.

Order accordingly.

DATED, SIGNED AND DELIVERED AT MOMBASA THIS 26TH DAY OF MARCH, 2021.

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J. N. ONYIEGO

JUDGE