[2019] KEHC 3421 (KLR)
The court found that the applicant was not named as a beneficiary or child in the deceased's will and had not challenged the validity of the will. The applicant failed to establish any beneficial interest in the estate or legal basis to demand accounts from the executors. Furthermore, the application was brought...
Source-derived case information.
- Citation
- [2019] KEHC 3421 (KLR)
- Parties
- Applicant: Hanif Habib Jiwan; Respondent: Alnoor Habib Jiwan; Respondent: Zahir Habib Jiwan
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 188 of 2004
- Procedural Posture
- Succession Cause / Ruling on Application to Compel Executors to Account
- Outcome
- application dismissed
- Judges
- A Ali-Aroni
- Legal Topics
- Probate and Administration, Executor Duties, Will Interpretation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hanif Habib Jiwan
Applicant
Alnoor Habib Jiwan
Respondent
Zahir Habib Jiwan
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Compel Executors to Account
Legal Issues
- 1 Whether the applicant is entitled to an account from the executors of the deceased's estate.
- 2 Whether the applicant is a beneficiary or has any legal interest in the estate of the deceased.
- 3 Whether the application is time-barred or otherwise defeated by delay.
Ratio Decidendi
The court found that the applicant was not named as a beneficiary or child in the deceased's will and had not challenged the validity of the will. The applicant failed to establish any beneficial interest in the estate or legal basis to demand accounts from the executors. Furthermore, the application was brought after an inordinate delay—26 years after the deceased's death and 15 years after probate was granted—rendering the claim time-barred and defeated by laches. The court concluded that the applicant had no standing and that the executors acted within the discretion granted by the will.
Court Disposition
application dismissed
Orders
- The application is dismissed.
- Each party to bear their own costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI
(FAMILY DIVISION)
IN THE REPUBLIC OF KENYA
SUCCESSION CAUSE NO 188 OF 2004
IN THE MATTER OF THE ESTATE OF HABIB JIWAN SUNBERJI (DECEASED)
HANIF HABIB JIWAN……………………...…..….…………APPLICANT
VERSUS
ALNOOR HABIB JIWAN
ZAHIR HABIB JIWAN……...………………...…..…………RESPONDENT
R U L I N G
1. The application before court seeks for orders to compel the Respondents herein who are Executors of the Will of the deceased to render a true, proper and comprehensive account of their administration of the estate of the deceased and the statement of affairs from the date of the deceased death to date and how the estate was disposed off.
2. The application is predicated on grounds that the Applicant is a son of the deceased who died on the 6th of March 1993, and at the Applicant of the deceased death the applicant was a mere 16 years, further that the Applicant has failed to obtain accounts from the Executors who were fraudulent and breached the trust bestowed upon them by the deceased by investing the estate in their personal names, yet the Applicant is left in the dark, and left in poverty and struggling.
3. The application was opposed by way of grounds of opposition in that the same does not adduce any evidence or legal basis and/or reasonable cause of action to justify or warrant the orders sought; no proof was provided that the Applicant was either a legal beneficiary or otherwise in any way entitled to a share of the estate; the prayers sought are caught up by Section 4(3)of theLimitation of Actions Act, are time barred by Section 30of theLaw of Succession Act. The action sought has been caught by the doctrine of laches, there was inordinate delay in the filing of the application and the same is an abuse of the due process.
4. There is no dispute that the deceased herein died 26 years ago and probate of his will obtained 15 years ago.
5. Further the deceased left a will wherein he named the Respondents as executors of the said Will and sole beneficiaries of the same with the powers to sell and invest the assets in any manner they deemed fit.
6. The Applicant was nowhere named in the Will either as child or beneficiary of the estate of the deceased. Though he was 16 years at the time of death of the deceased, he was 31 years of age at the time of the application for probate.
7. Secondly, even after coming across the Will the Applicant has not challenged the same and he remains entirely excluded as an heir of the said will.
8. From the foregoing, the applicant has not only failed to prove his beneficial interest or otherwise, he appears to have no basis whatsoever to challenge the discretion bestowed upon the Executors/Beneficiaries of the Will.
9. Further there has been a lapse of 26 years since the deceased passed away and 15 years since the time probate was obtained, the delay is certainly inordinate.
10. Consequently, the application is dismissed each party to meet them costs.
Dated and Delivered in Nairobi on this 26th day of September, 2019
.........................
ALI-ARONI
JUDGE