[2023] KEHC 25715 (KLR)

In re Estate of Guardial Kaur Sihra (Deceased) (Succession Cause 1491 of 2017) [2023] KEHC 25715 (KLR) (Family) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25715 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 1491 of 2017

PM Nyaundi, J

November 17, 2023

Ruling

1. There are two applications for determination. The first is Chamber Summons dated 3rd August 2023, presented by Harjinder Kaur Dhanjil, a co-Administrator. The Application is presented under Rule 3 of the High Court Practice and Procedure rules, Section 45 and 47 of the Law of Succession Act and Rules 49,63 and 73 of the Probate and Administration Rules and seeks the following orders:1. Spent2. Spent3. That pending the hearing and determination of this Application and confirmation of Grant:i.This Honourable Courtii.To be pleased to issue an order of restraining the Respondent either by himself, his agents, servants or personal representatives from intermeddling with the estate and/ or leasing, renting, transacting, charging, selling, alienating, and or in any other way whatsoever interfering with or otherwise dealing with the properties comprising the Estate being, LR. Number 8272/29 Spring Valley, Nairobi; LR Number 12325/78 Spring Valley, Nairobi; LR Number209/10497/14 Jokim, Nairobi; LR Number 209/10497/15 Jokim, Nairobi; LR Number 337/659 Athi River; Plot Number831 Malindi; Plot Number 834 Malindi; LR Number 209/2763/26 Gikomba; LR Number209/3007/2 Parklands, Nairobi; LR Number 1/667 Rose Avenue, Nairobi.iii.This Honourable Court be please to issue an order restraining the Respondent, their agents, servants and or employees from or interfering with the Deceased’s Estate including her bank accounts domiciled at Bank of Baroda, Bank of India and 1& M Bank Limited.iv.This Honourable Court be pleased to issue an order Respondent to grant access to the Administrators and all the beneficiaries to the family home on LR No.209/3007/2 Parklands Nairobi.v.This Honourable Court be pleased to issue an order compelling the Respondent to hand over and /or surrender the original titles in respect of properties comprising the estate being LR. Number 8272/29 Spring Valley, Nairobi; LR Number 12325/78 Spring Valley, Nairobi; LR Number209/10497/14 Jokim, Nairobi; LR Number 209/10497/15 Jokim, Nairobi; LR Number 337/659 Athi River; Plot Number831 Malindi; Plot Number 834 Malindi; LR Number 209/2763/26 Gikomba; LR Number209/3007/2 Parklands, Nairobi; LR Number 1/667 Rose Avenue, Nairobi.vi.This Honourable Court be pleased to issue an order directing the Respondent to render true account of all the rent he has collected from the properties forming the Estate of the deceased since her demise on 21st October 2017. vii.This Honourable Court be pleased to issue an order directing that all rental income in respect of the properties belonging to the Estate of the deceased be paid to the Estate Account to be provided by the joint administrators.viii.THAT the Respondent be ordered to refund all and any proceeds he has withdrawn from the Deceased’s accounts and or misappropriated from the entire estate.ix.THAT the officer Commanding Station (OCS) parklands Police Station be directed to assist the Applicant in the enforcement of the orders herein above.

2. The Application is supported by the Affidavit of HARJINDER KAUR DHANJIL sworn on 3rd August 2023. In the said Affidavit, she depones that she is a co Administrator pursuant to order issued on 21st June 2023.

3. That following their appointment as administrators their effort to administer the estate have been frustrated by the Respondent, Jagjeet Singh. It is averred that the Respondent is guilty of intermeddling with the estate of the deceased and has denied access of the beneficiaries to the family home.

4. It is alleged that the respondent is in possession of original title deeds and there is a risk that he will dispose of the properties. It is feared that he has already disposed of some assets namely Malindi Plot No 831, Athi river Plot No. 337/659 and rose Avenue plot no 1/667,

5. The Application is opposed by the Respondent who has sworn an affidavit in opposition. He asserts that he is a beneficiary of the Estate of the Deceased and he was the primary care giver of the deceased. He resided with the deceased at LR NO. 208/3007/2 Crescent Road up to the point of her death. He currently resides on the property with his family.

6. Following the failure of Court appointed administrators to agree the Court appointed the Public Trustee to act as Administrator. The public Trustee acted as administrator until 21st June 2023.

7. He disassociates himself from the Consent recorded on 21st June 2023, as the Advocate who appeared on his behalf did not have instructions as his current advocate had filed a notice of change in June 2022.

8. He avers that he has continued to collect rent from properties ‘in furtherance of a good faith obligation to his grandmother’ the deceased. Further he depones that it is the Public Trustee who has been administering the estate and asks that the Court nullify the consent, revoke the current grant and reappoint the public trustee.

9. He urges that the application be dismissed as the administrators are abusing their powers.

10. The 2nd Application for determination is dated 9th August 2023 and is presented by Jagjeet Singh, a beneficiary of the estate under Rule 3 of the High Court (Practice and procedure Rules) and all enabling provisions of the law), Order 40 Rule 1 of the Civil Procedure Rules, Section 47 of the Law of Succession Act, Rule 73 of the Probate and Administration rules. The Application seeks the following orders;1. Spent2. THAT pending the hearing of this application inter-partes and determination thereof, this Honorable Court be pleased to grant injunction Orders restraining both Harjinder Kaur Dhanjal and Manjit Kaur Chana from entering L.R. No. 209/3007/2 Crescent Road, Parklands either by themselves or their agents or interfering with the Applicant’s quiet possession of the Property.3. THAT pending the distribution of the Estate herein, this Honorable Court be pleased to grant injunction orders restraining both Harjinder Kaur Dhanjal and Manjit Kaur Chana from entering on L.R. No. 209/3007/2 Crescent Road, Parklands either by themselves or their agents or interfering with the Applicant’s quiet possession of the Property.4. THAT pending the hearing of this application inter-partes and determination thereof, this Honorable Court be pleased to grant orders of Status quo on the Estate of GURDIAL KAUR SHIRA (DECEASED)5. Costs of suit

11. The Application is supported by the Affidavit of Jagjeet Singh, he depones that as primary care giver of the deceased, he lived with her on the property at Crescent Road, Parklands. He is a beneficiary and even after the death of his grandmother he has continued to stay on the property with his family.

12. He has a long history of litigation with the other beneficiaries of the Estate which he terms as vexatious. He sets out the chronology of representation, beginning with Petition lodged by him, Sukhdev Kaur and Manjeet Kaur Chana and culminating in the grant issued to Harjinder Kaur Dhanjal and Manjit Kaur Chana.

13. It is his contention that the grant issued to Harjinder Kaur Dhanjal and Manjit Kaur Chana is not valid as it is based on a consent recorded by a counsel who did not have instructions. He avers that his current Counsel, Aoko Githara & Co. Advocates came on record on 13th June 2022 by filing a Notice of Change of Advocates.

14. For this reason, he argues that the Estate should revert to the Public Trustee pursuant to the orders of Hon Justice Onyiego J.

15. He avers that the Respondents have abused the grant by using it to intimidate and harass him.

16. He denies that he has in any way misappropriated the estate. He is opposed to the Respondents and other beneficiaries’ access to his residence as that would convert it to a public space.

17. He argues that either another administrator be appointed or the estate revert to the Public trustee. He concludes by urging that the administrators should not violate his fundamental rights in the property as they purport to exercise their rights.

18. The Application is opposed by both the Respondents and a beneficiary who have filed separate Affidavits. The Affidavit of Harjinder Kaur Dhanjil is sworn on 6th September 2023. She avers that the Application is not merited and if granted will negate the progress made towards administration of the estate.

19. It is contended that the actions of the Applicant compromise intermeddling and if left unchecked might result in wasting of the Estate. It is contended further that the property in Parklands is a family home and the Applicant does not enjoy a superior right over it as against the other beneficiaries.

20. The 1st Respondent further challenges the Applicant’s averment on the issue of Representation averring that the Notice of Change of Advocates was not served on all parties as required by law and further that the record will show the firm of Ochoki & Ochoki continues to appear for the Respondent.

21. The 1st respondent avers that the litigation history enumerated by the Applicant is not relevant to the matter in question. It is deponed that as administrators they are donned with the requisite mandate to collect the assets of the deceased. It is averred that the actions of the Applicant are illegal and unjustifiable.

22. The Application is also opposed by Kalvinder Kaur Bhabra, a daughter and beneficiary of the Estate of the deceased, whose affidavit is sworn on 18th September 2023. She avers that the 1st and 2nd respondent were duly appointed as administrators pursuant to consent dated 22nd November 2022.

23. That at the time the consent was recorded Ochoki and Ochoki were properly on record. It is denied that the Public Trustee was appointed as administrator. It is further contested that the Applicant has any colour of right over the asset at Crescent Road in Parklands. It is further averred that the Respondent is obstructing the administration of the Estate.

24. The Court directed that the parties the parties prosecute the applications by making oral submissions. Parties were heard 0n 26th October 2023.

Summary of oral submissions 25. Counsel for the Applicant in Application dated 9th August 2023 submitted that the Applicant had satisfied the requirements for grant of an injunction as set out in the locus classicus case of Giella v Cassman Brown. Specifically, that the Applicant had established a prima facie case given that he has been in occupation of the house for a considerable length of time.

26. It is further submitted that the Applicant and his family would suffer irreparable damage if they were to be evicted from the house as no compensation would be sufficient.

27. Finally, it is submitted that the balance of convenience favours the Applicant. It had always been the will that the Applicant occupy the house.

28. The Consent recorded on 21st June 2023 was by Counsel who was no longer on record for the Applicant and therefore the orders ought to be vacated.

29. Since December 2019 following the ruing of Onyiego J Estate has been under the charge of the Public trustee as the Administrator and the Court should reinstate the Public Trustee.

30. In response Counsel for the Co Administrator and a Beneficiary urged that the Court should discount the submissions on vacating the Consent and reinstating the Public Trustee as these were made from the Bar and the Applicant has not sought these prayers in the Notice of Motion before Court.

31. In any event it is submitted that they did not file a Notice of Change and that therefore the firm of Ochoki and Ochoki are still properly on record.

32. It was submitted that contrary to the assertions of the Applicant the Respondents did not seek to evict him, but rather to compel him to give access to what is described as the family home at Parklands.

33. On the Application dated 3rd August it is submitted that the this being a family home the Applicants should have unrestricted access and that further contrary to Section 45 of the Law of Succession Act, the Respondent continues to collect rental income. The Applicants also seek orders enabling them to access the deceased’s bank accounts.

34. It is submitted that the Public Trustee never collected rent, that the Respondent has continued to collect rental income in properties that belong to the deceased.

35. The Respondent cannot lay claim to the property of the deceased prior to distribution. It is further submitted that the Respondent has disposed of some assets belonging to the deceased.

36. Kulwinder Kaur, a beneficiary in opposition to the A application dated 3rd August 2023, submits that the Public Trustee did not file a Petition as directed and therefore they never were the administrators of the Estate. The Public Trustee’s efforts were frustrated by the non- cooperation of the beneficiaries.

37. It is further submitted that the firm of Ochoki and Ochoki Advocates were properly on record. All the beneficiaries should have access to the home at Parklands. Further it is submitted that the Deceased should be found guilty of intermeddling

38. In response the Applicant in the Application dated 9th August 2023 submits that the Administrators are trustees and not owners of the property of the deceased. He reasserted that Onyiego J appointed the Public Trustee as administrator. The properties of the deceased are managed by a management company employed by the Deceased prior to her death. The claim that he was withholding the titles to the deceased’s assets was not substantiated. Failure of the Banks to comply with the orders of the Court cannot be blamed on him.

Analysis and determination 39. Having carefully considered the pleadings herein, reflected on the rival submissions guided by the relevant law, I frame the following as the issues for determination-1. Whether the Grant of Letters of Administration herein should be revoked?2. Whether the Court should grant injunctive orders as sought in Application dated 9th August 2023. 3.Whether the Court should grant the injunctive orders sought in Application dated 3rd August 2023. 4.Whether the Respondent in Application dated 3rd August 2023 is guilty of intermeddling and if in the affirmative what consequential orders should issue?5. Who should pay costs?

40. On the 1st issue; Whether the Grant of Letters of Administration herein should be revoked? `And if in the affirmative what are the consequential orders the Court should make?The Applicant seeks that the court vacate the Consent order record on 21st June 2023 and in so doing is seeking a revocation of the grant issued to Manjit Kaur Chana and Harjinder Kaur Dhanjil on 21st June 2023. It is contended that the Counsel who attended Court on 21st June 2023 did not have the Consent of the Applicant, Jagjeet Singh.

41. I observe that the Notice of Change that has been filed is dated 13th July 2022 and not 13th June 2022 as deponed. Further there is no Notice of Change of Advocates filed by the firm of Aoko Githara & Company Advocates dated 13th June 2022 on the portal. I am therefore unable to ascertain that the Notice of Change was filed and served in accordance with Order 9 rule 6 of the Civil Procedure Rules.

42. I note further that the Consent related to the appointment of an administrator and the Court was invited to adopt Consent signed by the Children of the deceased dated 22nd November 2022. The Court via ruling of the Hon. Onyiego J delivered on 25th September 2018, already pronounced itself on who among the beneficiaries ranked in priority in terms of the right to administration.

43. I find that that the Consent was properly executed and therefore properly adopted by the Court. The Applicant, Jagjeet Singh as a beneficiary/ Dependant does not have the requisite locus to challenge the Appointment of the Administrators as the Consent is recorded by the Children of the deceased and is consenting to the appointment of the Children of the deceased as Co- Administrators. It is not disputed that he is a grandson of the deceased.

44. The Applicant as part of his submissions argues for the reinstatement of the Public Trustee as the Administrator of the Estate, pursuant to the ruling of the Court rendered on 17th December 2019. I have read the said ruling and it is clear that the Court nominated the Public Trustee and the Trustee was to move with speed to file the Petition. It is evident that the Order was not self executing, the Public Trustee was required to Petition for the grant.

45. I have read the Affidavit of Dorcas A. Nyalwidhe, Deputy Public Trustee sworn on 30th September 2022 and it is evident that the Beneficiaries failed to cooperate and therefore the Public Trustee was unable to Petition for Grant pursuant to the orders of the Court. In paragraph 25 she states that the Public Trustee cannot take over management of the Estate of a private citizen absent the consent of the Adult legal beneficiaries. That consent is not forthcoming in this Estate. It follows therefore an order nominating the Public Trustee once again would be an exercise in futility.

46. For the above reasons I decline to vacate the Consent and find that the Administrators are duly appointed.

47. On the 2nd Issue, whether the Court should issue an injunction in terms of prayer 2, 3 and 4 of the Application dated 9th August 2023?The conditions that must be met prior to the issuance of an injunction are set out in the case of Giella v Cassman Brown Co. Ltd 1973 E.A. 358 as follows;“First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable harm which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on a balance of convenience.”

48. In the Court of Appeal decision in Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR the Court while referring to the principles in the Giella Case reiterated the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent and stated thus;It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. See Kenya Commercial Finance Co. Ltd V. Afraha Education Society [2001] Vol. 1 EA 86. If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between. (Emphasis Supplied)

49. As emphasized by the Court of Appeal the test is applied sequentially. The Applicant must first establish that they have a prima facie case. In the instant case, the Applicant seeks to assert rights in relation to property of a deceased person. It is not contested that by virtue of being a grandson he is a dependant of the deceased. He seeks to assert this right against the Respondents who have been granted letters of Administration.

50. Prior to the transmission of the asset to him upon confirmation of the grant, the Applicant has no shade of right on the assets of the deceased. He is as a man standing on sinking sand. Section 45 (1) of the Law of Succession Act providesExcept so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person. (Emphasis Supplied)

51. The Law is clear, an individual cannot purport to take possession of any property of a deceased person except under sanction of law or grant of representation. For this reason, I find that the Applicant has not established a prima facie case and that therefore, I will not consider the other 2 limbs, that is whether he would suffer irreparable damage or whether the balance of convenience favours him.

52. Regarding his treatment by the Administrators, I would hasten to add that the law only protects the lawful acts of Administrators. If the Administrators are minded to remove him from the property at Crescent Road in Parklands, they are obligated to follow due process.

53. Judicial precedent and the law have established the jurisdiction of this court and limited it to the administration of the free estate of the deceased person. If as in the current case, the parties are minded to litigate over access and control of the deceased assets then the proper forum will be the Environment and Land Court.

54. For the above stated reasons, I decline to grant the injunctions as sought by the Applicant in Application dated 9th August 2023. I am also unable to order for the maintenance of status quo as the Administrators are under obligation to comply with the law when administering the estate. Once the administrators move the Court seeking to disrupt the status quo, that application will be determined on its merits.55. Whether the Court should grant the injunctive orders sought in Application dated 3rd August 2023The Applicant seeks that the Respondent be compelled to handover/ surrender the original titles in respect of properties enumerated in prayer 2 ii) of the Application and that the respondent be compelled to grant the Administrators access to the family home on LR No. 209/3007/2 Parklands Nairobi.

56. On the first request, the Respondent denies he is in possession of the title deeds, nothing has been placed before the Court to substantiate the claim that he has the titles. In the circumstances I am unable to grant the orders sought compelling him to surrender the titles. This limb of the Application is therefore dismissed

57. With regard to access to the home, having found that the Respondent does not at this stage have a proprietary interest in the assets of the deceased to the exclusion of the other beneficiaries, his actions barring the other beneficiaries from accessing the property are not defensible.

58. It is not contested that the Respondent is currently residing on the property with his family. It is also not controverted that he lived on the property with the deceased, housed by him. I find therefore that this is the family home and it is only fair that the Children of the deceased have access to the house. Given the acrimonious relationship between the Respondent and the Applicants however this access has got to be structured.

59. For this reason, the Administrators and all the beneficiaries of the deceased are allowed access to the home situated at Crescent Road, Parklands on the weekends between the hours of 10 am and 5pm or such other time as may be mutually agreed with the Respondent.60. Whether the Respondent in Application dated 3rd August 2023 is guilty of intermeddling and if in the affirmative what consequential orders should issue?Section 45 of the Law of Succession Act set out above defines intermeddling. In the instant case the Respondent does not deny that he has been collecting rent. Given that there are now substantive administrators to the estate, who are clothed with powers over the estate of the deceased, the collection of rent and management of the estate must shift to the administrators.

61. Accordingly, I find that the continued collection of the rental income by the Respondent amounts to intermeddling and he is restrained from continuing to do so. In the event that he persists, the Administrators are at liberty to initiate criminal charges under Section 45(2) of the Law of Succession Act.

62. In conclusion the Court by dint of Section 47 of the Law of Succession Act is mandated to make orders that meet the ends of justice, Accordingly I make the following orders;1. The Application dated 9th August 2023 is dismissed in its entirety2. The Application dated 3rd August partially succeeds as followsi.The Administrators and beneficiaries to have access to the home at Crescent Road on weekends between 10am and 5pm or such other times to be mutually agreed with the Respondent, Jagjeet Singh.ii.The Administrators to open a joint account within 14 days for purposes of collecting rental income of the properties of the deceased.iii.All the tenants to pay rents due into this account effective 30th November 2023. This order to be served on all tenants.iv.The Respondent Jagjeet Singh to file in Court a full detailed and accurate account of all dealings with the estate of the deceased from the date of her death to date, including rental income within 60 days from the date hereof.3. The Administrators to proceed and place restrictions/ inhibitions against the properties of the deceased being LR. Number 8272/29 Spring Valley, Nairobi; LR Number 12325/78 Spring Valley, Nairobi; LR Number209/10497/14 Jokim, Nairobi; LR Number 209/10497/15 Jokim, Nairobi; LR Number 337/659 Athi River; Plot Number831 Malindi; Plot Number 834 Malindi; LR Number 209/2763/26 Gikomba; LR Number209/3007/2 Parklands, Nairobi; LR Number 1/667 Rose Avenue, Nairobi.4. The Summons for Confirmation dated 3rd October 2023 to be served on all Beneficiaries / dependants within 7 days, Affidavits of protests to be filed within 14 days of service and leave granted to the Administrators to file further affidavit within 7 days of service of Affidavit(s) of Protest. The Summons will be mentioned on 17th January 2024 to confirm compliance and take further directions5. Having regard to the nature of the Application, each party will bear their own costs

It is so ordered

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 17TH DAY OF NOVEMBER, 2023. P. NYAUNDIJUDGEIn the presence of:Mr Onyinkwa AdvocateMs Shaban AdvocateMr. Ochoki AdvocateSylvia Court AssistantSUCC No. 1491 of 2017 0