[2022] KEHC 14779 (KLR)

In re Estate of Dalip Singh Dhanjal (Deceased) (Succession Cause 259 of 2013) [2022] KEHC 14779 (KLR) (4 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14779 (KLR)

Republic of Kenya

In the High Court at Mombasa

Succession Cause 259 of 2013

JN Onyiego, J

November 4, 2022

Between

Jaswinder Kaur Koundu

Applicant

and

Nirmal Singh Dhanjal

1st Respondent

Inderpal Kaur Dhanja

2nd Respondent

Judgment

1. The deceased herein Dalip Singh Dhanjal died intestate on July 15, 2020. Consequently, his son Nirmal Singh Dhanjal (hereafter Nirmal) claiming to be the sole survivor to the deceased petitioned for a grant of representation culminating to the issuance of a grant of letters of administration intestate to him on December 19, 2013. The same was confirmed on February 14, 2014.

2. However, vide the application dated January 21, 2016, one Jaswinder Kaur Koundu (hereafter Jaswinder) a daughter to the deceased sought revocation of the grant on grounds that the said grant was obtained fraudulently and through concealment of material information and non-disclosure of the fact that she too was a beneficiary to the estate and therefore ought to have been consulted or her consent sought.

3. By consent of both parties, the court on November 26, 2018 revoked the grant and issued a fresh grant to the two (Nirmal and Jaswidner) jointly. Nirmal was however ordered to provide a full and accurate account of the estate since December 19, 2012 to the date of the consent. He was also to provide a written indemnity in favour of Jaswinder against any claim from 3rd parties covering the period he was managing the estate alone. The two were then to apply for confirmation of the grant.

4. Meanwhile, by the application dated November 12, 2018, Sukhwant Kaur Dhanjal (hereafter Sukhwant) moved the court seeking that she and her brother Joginder Singh Dhanjal (hereafter Joginder) be enjoined as interested parties to the proceedings. Apparently, the two were appearing as administrators to the estate of their late father Jaswant Singh Boor Singh Dhanjal (hereafter Jaswant) who was the late brother to the deceased.

5. According to them, some of the properties listed in this succession case were co-owned and developed by the deceased and his brother Jaswant whose estate is being handled vide succession cause No 20/2006 Mombasa high court. They also disclosed that the deceased herein had a 3rd child one Kirpal Singh Dhanjal aka Rajpal Singh Dhanjal (hereafter Rajpal) who died on October 25, 2006 but left a widow known as Inderpal Dhanjal and a son by the name of Jasdev Singh Dhanjal born on January 10, 2006 hence they accused the administrators of failure to disclose that fact.

6. On May 5, 2020, the court dismissed the application by Sukhwant and Joginder on grounds that they were not beneficiaries to the estate herein and that the court was capable of distinguishing the extent of the assets constituting the estate of the deceased.

7. Later, by application dated August 18, 2020, Inderpal the mother to Jasdev Singh being a son (a minor) to the deceased’s son Kirpal hence a grand-son to the deceased, moved the court seeking to be enjoined together with her son as beneficiaries of the estate. During the pendency of that application, parties agreed that the said child (Jasdev) was a beneficiary hence should be recognized and included in the list of beneficiaries.

8. However, Inderpal, mother to Jasdev, withdrew her interest in the estate. In its ruling dated April 19, 2021, the court recognized Jasdev as a beneficiary. Consequently, the court directed the parties to file an application for confirmation of the grant.

9. Subsequently, Jaswinder one of the administrators filed summons for confirmation of the grant dated January 19, 2021 seeking confirmation of the grant. The sole application was allegedly necessitated by Nirmal’s refusal to co-operate and participate in the process of applying for confirmation of the grant.

10. In the affidavit in support of the application for confirmation sworn on January 13, 2022, Jaswinder listed herself and Nirmal as the only children surviving the deceased and Jasdev as one other beneficiary. The applicant listed three categories of assets. Category A comprise of assets whose ownership documents she had proof. While category B&C were assets not ascertainable. She proposed the estate to be shared out equally between the three beneficiaries as hereunder:

A. Assets [evidence Sighted]Item No Asset Evidence of Asset Page in JKK-1 where evidence of the asset appears.

Plot No 2421/1/MW Search dated October 3, 2014 32

One part of a quarter in Mombasa/Block X/30, being a tenancy in common. Title deed 33 to 34

One part of a third in Mombasa/Block XIII/55, being a tenancy in common Title deed 35 to 38

One part of a third in Mombasa/Block X/377, being a tenancy in common Title deed 39 to 42

18750 shares in Dhanjal Investments Limited. Properties held by this company include: -a. Plot No 868/1/MNb. Plot No 1557/1/MNc. Plot No 917/1/MNd. Plot No 9147/1/MNe. Plot No 901/1/MNf. Plot No 9245/1/MNg. KCB GBP Account No xxxxh. KCB USD Account No xxxxi. KCB EURO Account No xxxxj. KCB KES Account No xxxxk. Bank of India Account No xxxxl. Spire Bank (Formerly Equatorial Commercial Bank) Account No xxxx Company SearchSearchSearchSearchSearchSearchSearchAccount StatementAccount StatementAccount StatementAccount StatementAccount StatementAccount Statement 4344 to 4546 to 474849505152535455 to 6465 to 7374 to 76

125 shares in Dhanjal Properties Limited. Properties held by this company include: -a. Plot No 4122/1/MN Company SearchSearch 7778

1 share in Jaypee and Sons Limited. Properties held by this company include: -a. MSA/BLOCK XVI/292b. MSA/BLOCK XVI/293c. MSA/BLOCK XVI/294d. MSA/BLOCK XVI/295e. MSA/BLOCK XVI/296f. MSA/BLOCK XVI/297g. MSA/BLOCK XVI/298h. MSA/BLOCK XVI/299 SearchSearchSearchSearchSearchSearchSearchTitle and Search 7980818283848586 to 88

1250 shares in Express Holdings Limited Company Search 89

1 share in Chania Estuary Developers Limited Company Search 90

1 share in Pesce Enterprises Limited Company Search 91

1 share in Chempac Limited Company Search 92

1 share in Whitehart Holdings Limited Company Search 93

11. Category B comprise of assets whose evidence is not sighted;

B. Assets [evidence Not Sighted]Item No Asset

Plot No 3082/I/MN

Plot No 1550/1/MN

Plot No 9240/1/MN

Plot No 9247/MN

Plot No 437/1/MN

Mombasa/MS/BLOCK I/445/1/MN

Plot No 1248/VI/MN

Mombasa/Block XIX/191

XXXX shares in Dhanjal Brothers Limited.

XXXX shares in Merryfield Limited UK.

XXXX shares in Water Beach Investments Limited

Bank of Baroda Account No xxxx

12. Category C comprise of assets whose evince is not sighted;

C. Assets [evidence Not Sighted] 25. Plot No 4410/1/MN

26. Plot No 1549/1/MN

27. Plot No XVIII/161

28. Plot No MN/VI/3146R (Subdivision of Plot No MN/VI/3665)

13. Upon service of the application for confirmation, Nirmal filed an affidavit of protest sworn on March 28, 2022 and filed the same day. He averred that Jaswinder (applicant) had failed to disclose diverse interests in respect of the properties and companies affected by the grant.

14. He averred that at all material times, his late father the deceased herein had three siblings namely; Jaswant, Narinder Singh Dhanjal (hereafter Narinder ) and Baldev Singh Dhanjal (hereafter Baldev). That during his life time, the deceased held intertwined interests in numerous undertakings and properties as co- director with his brothers herein above.

15. That on March 9, 2006, his father (deceased), Baldev, Narinder and Legal representatives of Jaswant who died on October 24, 2004 being Daljit Singh, Surjit Singh and Joginder Singh entered into a settlement agreement through which properties held by the four brothers (Dalip the deceased herein), Jaswant, Baldev and Narinder were to be shared out and re assigned as per the family memorandum of understanding of November 25, 2005. That all parties to the settlement agreement executed the year 2006 including the deceased who was by then alive signed disclaimers voluntarily ceding all interests in assets which they had become entitled to by dint of Jaswant’s death.

16. He deponed that pursuant to the said agreement, various properties shifted ownership with some transfers being executed in favor of the respective beneficiaries. It was further averred that some of the properties listed including companies in the application for confirmation do not exclusively belong to the deceased hence not available for distribution as they belong to their three uncles (estate of Jaswant, Baldev and Narinder).

17. He deponed that he was aware that the foresaid settlement agreement came into question in the proceedings in respect of the estate of the late Jaswant (succ case No 20 of 2006) in which it was declared null and void abinitio. He stated that it was necessary that the mess occasioned by the invalidation of the settlement agreement be settled first before distribution of any of the estate’s assets considering that some of the estate assets have either depreciated or been disposed.

18. In his view, until the assets which changed hands as a result of the settlement agreement are restored back to the original owners, the assets in dispute or question should not be distributed.

19. On her part, Inderpal Kaur Dhanjal mother to Jasdev (minor beneficiary) swore a supplementary affidavit on January 20, 2022 in support of the application for confirmation thus stating that shares listed in the schedule of assets under category B indicated as items 21,22 and 23 were 1135 shares, 1 share and 1 share respectively.

20. In rejoinder, Jaswinder filed a supplementary affidavit sworn on April 9, 2022 attaching proof of ownership of Mombasa /Block XIX/191 property listed under item 20 of the schedule of assets not sighted under category B being ¼ shareholding of the deceased.

21. She expressed herself that Nirmal (the protestor) cannot hide behind a settlement agreement which was declared null and void by the high court in its ruling of September 25, 2020 in respect of the estate of Jaswant in Succ case No 20/2006. That Nirmal is trying to breathe life into the already nullified settlement agreement in respect of which the court said that the said Jaswant having died before the settlement agreement was entered, his family (children) had no capacity to engage in the distribution of his estate before processing a grant of letters of administration.

22. That the same high court decision was upheld by the court of appeal and subsequently the supreme court. She further deponed that Nirmal did not state in his affidavit in protest with specificity as to which of the properties were affected by the settlement agreement and which ones do not belong to the deceased exclusively. That Nirmal dwelt on generalities hence not assisting the court.

23. Regarding 3rd party interests from Baldev, Narinder and Jaswant’s estate, Jaswinder stated that none of them had raised any claim hence Nirmal cannot plead their case. That there was no evidence to show that some properties had changed hands due to the nullified settlement agreement.

24. According to her, there is already a confirmed grant in respect of the estate of Jaswant’s estate where assets have clearly been isolated and distributed without any hitch from the nullified settlement agreement.

25. When the matter came for directions, parties agreed to dispose the protest by way of written submissions. The firm of Oraro and company advocates appearing for Jaswinder (applicant) filed their submissions on March 5, 2022. Despite sufficient time being given to Mr Githara to file submissions for Nirmal, none was filed. The firm of Otieno appearing for Inderpal for the minor beneficiary did not file any submissions as they associated themselves with Jaswinders’s submissions.

Objector/protestor’s oral submissions 26. Mr. Githara appearing for the objector /protestor /1st petitioner did not file written submissions. He nevertheless submitted orally thus adopting the content contained in the affidavit of protest. Counsel submitted that, despite the nullification of the settlement agreement by the high court, court of appeal and the supreme court, its effect is still alive and cannot be ignored

27. Learned counsel contended that the nullification of the settlement agreement implies that all that was done under the agreement has to revert back to its original position. That succession case No 20/2006 in relation to the estate of Jaswant is still pending determination hence the outcome of this case will have far effect in its determination.

28. As to whether the issue of nullification of the settlement agreement is resjudicata, counsel opined that it was not as the issue of disclaimer in the said agreement was not resolved. That distribution of assets without taking into account disclaimers might leave succession case No 20/2006 in a limbo.

Jaswinder /applicant /2nd petitioner’s submissions. 29. M/s Lubano appearing for the applicant/ 2nd petitioner basically adopted their submissions filed by the firm of Oraro and Co advocates on September 5, 2022 which is a replica of the affidavit in support of the application for confirmation and supplementary affidavit in response to the protest.

30. Basically, the applicant submitted on the question whether the issue of the nullified settlement agreement is still an issue for litigation hence resjudicata. Counsel contended that the same having been litigated before the three superior courts and a verdict of nullity returned, this court cannot revisit it again hence the doctrine of resjudicata comes to force. That this same court recognized that the settlement agreement was not enforceable anymore.

31. Counsel submitted that the protest/objection herein is a clear case of abuse of the court process as a litigant cannot be allowed to litigate on one subject over and over again. In that regard the court was referred to the case of VChokaa and Co advocates Vs Francis Thoya, County Secretary Mombasa County Government and 4 others (Judicial Review application No 69 of 2018 [2021] KEH 260)( KLR) ( 24 November 2021) where the court held that a litigant cannot be allowed to litigate a matter over and over again. Counsel further referred to the case of Satya Bhama Gandhi Vs Director or Pubic Prosecutions & 3 others [2008] eKLR where similar sentiments were expressed by the court.

32. It was further submitted that the settlement agreement in question was orchestrated by Nirmal hence the reason why he is not able to specify the actual assets affected by the nullified agreement.

33. Regarding the question of the asserts identified for distribution, counsel submitted that the applicant had submitted evidence to prove that these properties belonged to the deceased either exclusively or ownership in common with each beneficiary having his or its distinct share for purposes of inheritance and distribution.

34. Lastly, it was submitted that the protestor had not discharged his burden of proof that the assets listed for distribution do not belong to the deceased.

Determination. 35. I have considered the application herein, protest thereof and submissions by both counsel. There is no dispute that the deceased died intestate. Equally, there is no contestation that he was survived by two children the administrators herein and one other beneficiary one Jasdev (a grandson) from the deceased’s son Kirpal Singh who pre-deceased the deceased herein.

36. According to the applicant, the estate should be shared out amongst the three beneficiaries at a 33% each. Nobody has disputed this mode of distribution hence I shall hold as such and adopt the same as the mode of distribution.

37. However, the crux of the protest herein is the identity of the assets comprising the estate. According to the protestor, one Nirmal, distribution of the estate cannot be done without taking into account the settlement agreement entered into in the year 2006 between the deceased and his brothers; Baldev, Narinder and the children of his late brother Jaswant.

38. In the protestor’s view, the nullification of the said agreement notwithstanding, the effect it caused is immense hence cannot be ignored. It is not in dispute that the validity of the said agreement was the subject of ligation in succession cause No 20/2006 in the estate of Jaswant where the high court declared it null and void. Subsequently, an appeal to the court of appeal Mombasa civil appeal No 14/2017 and later to the Supreme Court vide application No 13/209 were dismissed and the high court decision upheld. Apparently, parties in this case are also interested parties in the Jaswant case.

39. The three superior courts were emphatic that the settlement entered by the children of Jaswant after their father had died before acquiring a grant was null and void.

40. It is therefore correct to say that a matter that has been litigated before a court of competent jurisdiction and a decision made on merit with finality cannot be reopened for litigation again. This is the spirit of resjudicata as expressed Under Section 7 of the Civil Procedure Act which provides;'No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.'

41. In the case of John Florence Maritime Services Limited and another v Cabinet Secretary for Transport and Infrastructure and 3 others [2015] e KLR the court pronounced itself as follows;'The rationale behind resjudicata is based on the public interest that there should be an end to litigation coupled with the interests to protect a party from facing repetitive litigation over the same matter. Resjudicata ensures the economic use of court’s limited resources and timely termination of cases.'

42. Similar position was held by the court of appeal Malindi in Accredo AG & 3 others v Steffano Uccelli & another [2019] eKLR and also the Supreme court in the Independent Electoral and Boundaries Commission v Maina Kiai and & 5 others [2017] e KLR where the court outlined the ingredients of resjudicata which must conjunctively be established as follows;(a)The suit or issue was directly and substantially in issue in the former suit.(b)That former suit was between the same parties or parties under whom they or any of them claim(c)Those parties were litigating under the same title(d)The issue was heard and finally determined in the former suit(e)The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised

43. Indeed, parties in this case are also affected and interested in succession case No 20 of 2006 estate of Jaswant where part of the estate being disputed herein is also the subject of litigation. I do agree with the applicant that the issue being raised by the protestor concerning the settlement agreement has been determined with finality by the apex court and this court cannot re-open it or make anything useful out of it

44. It is trite that an act that is a nullity is then void a binitio. For Mr Githira to claim that the aspect of the disclaimer contained in the settlement agreement was not determined is erroneous. The moment the document was declared null and void, it became lifeless. Once a nullity always a nullity and therefore bad in law abinitio. See Mcfoy v United African Company Limited 1961 3 all ER 465 where the court held that;'If an act is void, then it is in law annuity. It is not bad but incurably bad. There is no need for an order of the court to set it aside.'

45. Without belaboring on the issue, this court cannot add any value on a document which cannot be salvaged. I can only emphasize that an agreement made in order to dispose or alter the status of a deceased person’s property without approval of the probate court is not only bad but void hence not enforceable in law.

46. Having settled the question regarding the settlement agreement and the list of beneficiaries and their respective share, I am left with the question of the assets comprising the estate for distribution. The applicant gave three categories with category A under items 1-12 being the deceased’s properties/assets with supporting ownership documents hence ascertainable. Category B and C with the exclusion of item 20-23 are unascertainable assets. It then follows that the only assets available for distribution as of now are assets in Category A under items 1-12 and assets listed as items 20-23 under category B of the schedule of distribution of assets presented by the applicant.

47. It is trite that a probate court cannot distribute assets whose ownership is not ascertainable. See the matter of the estate of M’Ajogi M’ikiugu alias Ikiugu Ajogi (deceased [2017] eKLR.

48. In the instant case, only the applicant tried to identify the extent of the deceased’s estate. The protestor did not even attempt to list even a single property as part of the estate. He generally dismissed the application for confirmation hence stuck in muddy waters in trying to defend an agreement which is long dead and buried. He should accept the reality that all the deceased’s assets must be identified as they were when he died without incorporating the element of the settlement agreement. The estate cannot remain undistributed forever while still crying over a non -existent settlement agreement.

49. Whereas I sympathize with the four families comprising of the deceased’s family and their uncles to the extent that the settlement agreement had taken root so much such that some properties have changed hands or status, the law must be applied. Perhaps parties can have their own private arrangements of offsetting each other’s interest on either estate but after confirmation and transfer of ownership. That will be voluntary and in good faith for the sake of cohesion in the larger family.

50. However, in the instant case, I am only left with one list of assets to consider for distribution which is; items 1-12 in category A of the schedule of assets and assets listed under items 20-23 in category B of the list of assets.

51. Having gone through the ownership documents in support of the assets listed under category A and items 20-23 in category B, I am satisfied that the identified assets whose ownership is clear from the annexed documents are to be shared out between the three beneficiaries in equal share with Jaldev’s share being held by the administrators in trust for his benefit until he attains the age of majority.

52. Regarding the remaining assets which were not ascertainable, beneficiaries shall be at liberty to apply for review of the confirmed grant for inclusion of those shares or assets.

53. Accordingly, the application for confirmation is hereby allowed and the grant herein issued on November 26, 2018 confirmed. The assets listed under category A and items 20-23 under category B of the schedule of assets attached to the application for confirmation as indicated herein above be shared out equally amongst Jaswinder Kaur Koundu, Nirmal Singh Dhanjal and Jasdev Sigh Dhanjal;

Schedule of assets for distribution;1. Plot No 2421/1/MW2. One part of a quarter in Mombasa/Block X/30, being a tenancy in common.3. One part of a third in Mombasa/Block XIII/55, being a tenancy in common4. One part of a third in Mombasa/Block X/377, being a tenancy in common5. 18750 shares in Dhanjal Investments Limited. Properties held by this company include: -6. a. Plot No 868/1/MN7. b. Plot No 1557/1/MN8. c. Plot No 917/1/MN9. d. Plot No 9147/1/MN10. e. Plot No 901/1/MN11. f. Plot No 9245/1/MN12 . KCB GBP Account No xxxx13. h. KCB USD Account No xxxx14 i. KCB EURO Account No xxxx15. j. KCB KES Account No xxxx16. k. Bank of India Account No xxxx17. l. Spire Bank (Formerly Equatorial Commercial Bank) Account No xxxx18. 125 shares in Dhanjal Properties Limited. Properties held by this company include:19. a. Plot No 4122/1/MN20. 1 share in Jaypee and Sons Limited. Properties held by this company include: -21. a. MSA/BLOCK XVI/29222. b. MSA/BLOCK XVI/29323. c. MSA/BLOCK XVI/29424. d. MSA/BLOCK XVI/29525. e. MSA/BLOCK XVI/29626. f. MSA/BLOCK XVI/29727. g. MSA/BLOCK XVI/29828. h. MSA/BLOCK XVI/29929. 1250 shares in Express Holdings Limited30. 1 share in Chania Estuary Developers Limited31. 1 share in Pesce Enterprises Limited32. 1 share in Chempac Limited33. 1 share in Whitehart Holdings Limited34. Mombasa/Block XIX/19135. XXXX shares in Dhanjal Brothers Limited.36. XXXX shares in Merryfield Limited UK.37. XXXX shares in Water Beach Investments Limited

DATED, SIGNED AND DELIVERED AT MOMBASA THIS 4TH DAY OF NOVEMBER, 2022. ......................J.N.ONYIEGOJUDGE