[2018] KEHC 3384 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

SUCCESSION CAUSE NO. 1800 OF 2004

IN THE MATTER OF THE ESTATE OF DHIRAJLAL RATILAL SONI (DECEASEd)

RULING

1. The cause herein relates to the estate of a person who died on 14th June 2003. He allegedly died testate having made a will on 22nd october1975. Representation to his estates was sought by Manjula Dhirajlal Soni, the executrix named in the will, through a petition lodged herein on 16th June 2004. A grant of probate of written will was made to her on 10th August 2004. The said grant was confirmed on 17th October 2005, on an application dated 1st June 2005.

2. An application was lodged herein on 30th October 2013, seeking revocation of the certificate of confirmation of grant issued following the confirmation of the said grant. It was brought at the instance of Chandulal Ratilal Bhurabhai Soni. He argues that the property distributed through that certificate did not belong to the estate of the deceased herein, but rather it was an asset in the estate of Ratilal Bhurabhai Soni.

3. The factual background to that application is given in the affidavit sworn in support by the applicant. He avers to be a son of Ratilal Bhurabhai Soni, who died on 29th September 1963, and that the deceased herein was his blood brother. Their father allegedly died testate, having made a will on 12th October 1961. Upon the demise of their father the deceased herein, Dhirajlal Ratilal Soni, was appointed the personal representative of the deceased, and a grant of probate of written will was made to him on 9th December 1964 in HCSC No. 299 of 1964. He had been named in the will of the deceased as an executor thereof. When the deceased herein passed on, the applicant herein succeeded him as personal representative of their father upon appointment in HCSC No. 299 of 1964. He caused the grant made to him confirmed on 1st March 2011 so as to distribute the estate of their deceased father. He complains that it would appear that his late brother while purportedly executing the will of their father cause the only asset in their father’s estate, LR No. 209/525/4, to be transferred and registered in his name absolutely. The deceased thereafter made the will the subject of these proceedings so as to devolve the said asset to his wife. He asserts that the said property never was a property of the deceased herein and the same should not form part of his estate.

4. He has attached several documents to his affidavit to support his case. There is a death certificate to evidence that their father died on 29th September 1963. There is also copy of the alleged will of his father. I must say that the copy on record is too faint and I am unable to make out its contents. There is also attached copy of the grant of probate of written will made in HCSC No. 299 of 1964. There is also the grant of probate of 1st March 2011 made to him in HCSC No. 299 of 1964 to take the place of the deceased herein as personal representative of their late father.

5. Manjula Dhirajlal Soni has responded to the application by way of an affidavit sworn on 26th November 2013. She is the widow of the deceased herein and his personal representative. She concedes that the deceased herein had been the executor of the will of their late father, but states that the subject property did not from part of the property disposed of in the will of their late father. She asserts that the applicant herein was appointed as personal representative of their late father in a fraudulent process as he had already renounced probate, and there is an application pending in HCSC No. 299 of 1964 for revocation of his appointment. She asserts that the subject property was an asset in the estate of the deceased herein, saying that no proof had been provided that the same ever belonged to their late father.

6. She has attached several documents to her affidavit to advance her position. There is copy of the grant made to her on 10th August 2004, a copy of a certificate of its confirmation dated 17th October 2005. There is also a certificate of lease in respect of LR No. 209/525/4 dated 1st April 2007 in the name of eth deceased herein. There is copy of a handwritten note dated 30th July 1967, in which the applicant herein and two others revoke their rights under the will of their late father and their reserved right to executorship under the said will. She has also attached copy of the application for revocation of grant.

7. The applicant responded to the said affidavit by his own sworn on 18th December 2013. He asserts that the deceased herein represented the deceased in all transactions relating to his estate. He points to a deed of assignment that the deceased herein signed on behalf of the estate relating to the same property.

8. I directed the parties to file and exchange written submissions. There has been compliance, both sides did file written submissions, complete with the authorities that they sought to rely on. The parties also made oral highlights of those submissions on 8th May 2018. I have noted the legal arguments made by the parties in their submissions.

9. I took the liberty of calling for the court file in HCSC No. 299 of 1964. The same was availed. I have perused it. It is a reconstructed file. The reconstruction was ordered on 29th March 2010. The proceedings recorded in it date from 2010. There are no proceedings covering the period from 1964, when the cause was initiated, and 2010, when the court file was reconstructed. The only documents dating to the pre-2010 period are the will of Ratilal Bhurabhai Soni of 12th October 1961 and the grant of probate dated 9th December 1964. There is nothing to indicate whether the said grant was ever confirmed. My perusal of the will the subject of the proceedings reveals that the same makes no reference whatsoever to LR No. 209/525/4. The events after 2010 are not relevant to what is before me, so I shall make no mention of them.

10. What is sought to be revoked is the certificate of confirmation of grant and not the grant itself. I would like to state, as I have stated before in o rulings and judgments in others causes, that section 76 of the Law of Succession Act, Cap 160, Laws of Kenya, targets revocation of grants of representation, and not the certificates of confirmation of such grants. A grant of representation and a certificate of confirmation of such grant are not one and the same thing. A grant of representation appoints personal representatives, while a certificate of confirmation of grant is a document that certifies that the grant has been confirmed. Section 76 is about revoking the appointment made through the grant, not the confirmation of such appointment or distribution of the estate.

11. A certificate of confirmation grant is just that, a certificate. It is not of the same genus as a grant of representation. A grant is an order of the court, while the certificate is not. The certificate is drawn from orders that a court makes on the application for confirmation of grant, and without the said orders there can be no certificate of confirmation. Conversely, revocation or cancellation or annulment of the certificate does not affect the orders made by the court on the application for confirmation of the grant. A party who seeks cancellation or annulment of such a certificate wastes his time as the cancellation once ordered does not affect the orders from which the certificate is derived. I repeat that the certificate of confirmation of grant has no life of its own outside the orders made by the court confirming a grant. What the person who is unhappy with orders on distribution should do is to seek the review or setting aside of the orders made by the probate court on the confirmation application, simultaneously with orders for cancellation of the certificate that issues upon the said confirmation orders.

12. I am being invited to interfere with orders that this court made on an application for confirmation of grant, by invoking a law which does not grant me discretion to do so. There is nothing in section 76 that empowers the court to interfere with orders on confirmation of a grant. Indeed, the only thing that the said provisions says on confirmation is that failure to apply for it within the time allowed is a ground for revocation. There I nothing in there which says that the court can revoke or annul certificates of confirmation of grant. The application before me is therefore not properly conceived for that reason.

13. The main plank of the applicant’s case is that the property in question belongs, not to the deceased herein, but, to the estate of their deceased father. It is insinuated that the deceased herein abused his office as executor of the will of their late father and caused an asset of their father to be transferred to his name. That is no doubt an issue of ownership of property, the question being, to which estate, between the the estate of the deceased herein and the estate of their late father, should the property belong to. The question of ownership of or title to property as between two contending persons or entitles is not for resolution by the High Court. The Constitution 2010 has taken away that jurisdiction and vested it in the Environment and Land Court by dint of Articles 162(2) and 165(5) of the said Constitution.

14. The primary mandate of the probate court is distribution of the estate of a dead person. The said court can only distribute such property as has been established as belonging to the estate of the deceased. Where a dispute arises over a property purported to belong to the estate, then the probate court ought to direct the parties to have the issue of ownership resolved at the Environment and Land Court first before the probate court can venture to deal with its distribution. That would mean that the two estates who are party to the instant application ought to canvass the issues that they have canvassed before me before the Environment and Land Court. It is only after that that the property would be dealt with by the probate court either in this suit or in HCSC No. 299 of 1964 depending on the outcome of the land case at eth land court.

15. I will not venture to make any pronouncement, one way or the other, on whether there is documentation to support the positions taken by both sides on the ownership of the said property. What I shall do is to find that I have no jurisdiction, sitting as Judge of the High Court, to determine the question of ownership of the said property. I shall hold that the application before me, dated 23rd October 2013, is not properly conceived and proceed to dismiss the same. I shall order that each party bears their own costs. Any party unhappy with the orders that I have made herein shall be at liberty to move the Court of Appeal appropriately within the next twenty-eight (28) days.

DATED, SIGNED and DELIVERED at NAIROBI this 5TH DAY OF OCTOBER, 2018.

W. MUSYOKA

JUDGE