[2022] KEHC 2606 (KLR)

REPUBLIC OF KENYA

IN TH EHIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

FAMILY DIVISION

SUCCESSION CAUSE NO. 279 OF 1978

IN THE MATTER OF THE ESTATE OF FATUMA MOHDHAR

MOHAMED HABIB ALIAS FATIMA BINTI MODHARI (DECEASED)

ABDULKADIR ABUBAKAR..........................................................................APPLICANT

-VERSUS-

IMU MOHAMED ABUBAKAR...............................ADMINISTRATOR/RESPONDENT

RULING

1. It is quite unfortunate and a serious indictment on the court and the parties herein that a succession dispute that begun in 1978 has not been finalised. The person who should shoulder the greatest responsibility for this state of affairs is the respondent Imu Mohamed Abubakar who has had the grant of letters of administration since 5th October 1978, except for a short period between 10th December 2013 and 20th June 2016. The respondent has had a confirmed grant since 29th April 2019.

2. A holder of a grant of letters of administration intestate is required by section 71 of the Law of Succession Act (Cap 160) to have it confirmed, and the estate distributed to the beneficiaries, upon the expiry of six months from the time of the grant. And a holder of a certificate of confirmation is required under sections 76(d) and 83(g)and (i) of the Act to proceed diligently with the administration of the estate by having it distributed to the beneficiaries, and to produce to court a full and accurate account of the completed administration. Such completion ought to have been done within six months of the confirmation of the grant.

3. The estate in question is that of Fatuma Mohdhar Mohamed Habib alias Fatima Binti Modhari who died intestate on 19th May 1975. She was survived by seven children:-

a) Hussein Abubakar;

b) Abdulkadir Abubakar (the applicant);

c) the respondent/administrator;

d) Madina Abubakar;

e) Rukiya Abubakar;

f) Ahmed Abubakar; and

g) Zahara Abubakar.

4. The estate comprised:-

a) L.R No. 37/242/17 Nairobi West that has six (6) flats; and

b) plots Nos. 51 and 52 Majengo in Nairobi.

5. The grant issued to the respondent on 5th October 1978. It was revoked on 10th December 2013 at the instance of the applicant. The applicant became the administrator. The complaint leading to the revocation was that the respondent had failed to carry out the administration of the estate and failed to have the grant confirmed. The respondent by an application dated 31st January 2014 sought the revocation of the grant issued to the applicant. One of his complaints was the application leading to the revocation of his grant had not been served on the other beneficiaries. The grant was revoked on 20th June 2016 and he was reinstated as the administrator.

6. The certificate of confirmation issued on 20th April 2019 shows that the estate was to be valued and sold and the proceeds shared so that each son of the deceased gets 18. 18% and each daughter of the deceased gets 9. 09%. It is not in dispute that Milligan Valuers Limited were authorised to value the properties to the estate and file a valuation report in court. After filing the report, they were to advertise for sale. Once sold, the proceeds were to be shared in accordance with the certificate of confirmation.

7. The present application was dated 18th January 2021 by the applicant. It was brought under section 76(d)(ii) of the Act and rule 44(1) of the Probate and Administration Rules seeking that the grant issued and confirmed to the respondent be revoked. The applicant alleged that the respondent had failed to proceed diligently with the administration of the estate and that he was frustrating the sale of the estate and its distribution to the beneficiaries as was ordered on 29th April 2019 when the grant was confirmed. The particulars as contained in the supporting affidavit were that Milligan Valuers Ltd had tried to sell the properties but that the respondent, who lives on LR No. 37/242/17 at Nairobi West, had stopped potential buyers by telling them that the property was not on sale; and that the respondent was resisting the offers made to the agent by soliciting his own offers.

8. The respondent filed a replying affidavit to deny the allegations. He denied that he had frustrated the agent from selling the properties, and that he was stumbling the sale. He stated that the applicant had from day one sought to be the administrator and had bought various applications, this one being one of them, to take away the administration from him. He blamed the applicant as being the one opposed to the sale, and claimed that the agent was, over and above the present job, managing the applicant’s property in Buruburu. Lastly, he did not wish that Milligan Valuers Ltd be the sole agents in respect of the estate and asked that any other agents who have sourced higher offers be brought on board to do the sale and to receive commission for their work.

9. It is clear that, once again, the completion of the administration of the estate has stalled. Under the Act, it was the responsibility of the respondent, as the administrator of the estate of the deceased, to sell the estate and to distribute the proceeds as ordered by the court in the certificate of confirmation. It was because of his failure and unwillingness to act that the court gave to Milligan Valuers Ltd the work of valuing, selling and sharing the estate. Until the responsibility has been taken away from Milligan Valuers Ltd, neither the applicant nor the respondent shall interfere with the work. No beneficiary can interfere with the orders given by the court to the agent. Any party who interferes will be guilty of the contempt of court orders. I started off in this ruling by observing that this succession dispute has remained unresolved since 1978!

10. The revocation of the grant as confirmed to the respondent is not, in the circumstances of this case, the appropriate option in moving the completion of the administration of the estate of the deceased forward. It should also be clear that if the respondent, the applicant or any other beneficiary receives any offer in regard to the property of the estate, such offer has to be handed over to Milligan Valuers Ltd for them to investigate its viability and genuiness. Otherwise, the work of sourcing for offers, determining the best offer and selling the property was given by the court to the agent. The agent is a licenced valuer and there is a law in place to discipline it in case anything illegal is discovered.

11. The last valuation of the estate property was on 21st June 2019. This is while back. I direct that within 14 days from today a fresh valuation be done, and a report be filed into court. The respondent who lives on LR No. 37/242/17 Nairobi west has to enable the agent to undertake the valuation of the property.

12. Within 120 days following the valuation, Milligan Valuers Ltd should advertise and sell the property of the estate to the highest genuine bidder and share the proceeds as directed by the court.

13. If, by letter to the Deputy Registrar, Milligan Valuers Ltd complains that the respondent has refused to allow them into LR No. 37/242/17 to value, to show a prospective buyer or to advertise the property for sale, the grant issued to him and confirmed shall stand revoked without any further reference.

14. In making the above orders, I have considered the history of this dispute and the powers donated to the court under section 47 of the Act and rule 73 of the Probate and Administration Rules.

15. Costs shall be borne by each party.

16. Any party not satisfied with any of the above orders shall appeal to the Court of Appeal within 30 days.

DATED AND DELIVERED AT NAIROBI THIS 1ST DAY OF FEBRUARY 2022.

A.O. MUCHELULE

JUDGE