[2022] KEHC 14553 (KLR)

In re Estate of Himatlal Jevatlal Mehta (Deceased) (Succession Cause 426 of 2011) [2022] KEHC 14553 (KLR) (7 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14553 (KLR)

Republic of Kenya

In the High Court at Mombasa

Succession Cause 426 of 2011

JN Onyiego, J

October 7, 2022

Ruling

1. The deceased herein died testate on the April 2, 2010 leaving behind a written will dated September 11, 2005.

2. In the written will the deceased appointed Bharat Himatlal Mehta, Ketan Himatlal Mehta And Maria Carmen Fernandes as the executors and trustees of his will. He bequeathed his property known as title No Mombasa/Block XXII/344 to his sons Bharat Himatlal and Ketan Himatlal Metha in equal share. He also bequeathed the residue of his net testate estate to his daughter Vandana Kirit Wadhar provided she predeceased him and if not, all her share to accrue to his sons Bharat Himatlal Mehta And Ketan Himatlal Mehta as shall survive her and if both shall survive her then in equal shares absolutely.

3. Following his death, the executors of his will petitioned this honourable court for grant of probate of the last will. The same was issued on June 14, 2012 and confirmed on August 15, 2013 with the certificate of confirmation issued on August 23, 2013. They listed the following as the heirs and assets of the estate of the deceased;Heirsa.Bharat Himatlal Mehta Sonb.Ketan Himatlal Mehta (Son)c.Vandana Kirit Wadhar(daughter)Assetsa.Mombasa /Block XXII/344b.Shares in CDS Account No 0000000035289

4. Later, Bharat Himatlal Mehta and Ketan Himatlal Mehta two of the three executors and sons of the deceased moved this court vide a chamber summons application dated February 3, 2020 seeking rectification of the certificate of confirmation to include the funds in the deceased’s Account SB 1101076300 with Bank of India, Mombasa which was omitted from the executors’ affidavit in support of grant of probate of the will. They also sought to have the third executor Maria Carmen Fernandes removed as an executor from the estate of the deceased on the ground that she had created a conflict of interest by claiming that the funds in the said account was hers thereby not allowing the other executors to carry out the intent of the last will of the deceased.

5. This court in its ruling delivered on July 30, 2020 pronounced itself on the issue of rectification of certificate of confirmation of grant and removal of Maria as an executor of the estate of the deceased. According to the court, there was no provision in law for removal of an executor hence Maria could not be removed. The court also found that Maria had no interest in the funds in the said account. However, the court was persuaded to include the omitted account into the list of assets. Consequently, the court gave the following orders;“The certificate of confirmation of grant dated August 23, 2013 is hereby cancelled. A fresh certificate of grant shall be issued which shall include the funds in account SB 1101076300 with Bank of India, Mombasa.The prayer for removal of Maria Carmen Fernandes as executor, is hereby declined.”

6. As a result, one of the beneficiaries namely Vandana Kirit Wadhar moved this honourable court via chamber summons application dated June 9, 2022 and supported by the affidavit of Kirit Shantilal Wadhar one of her attorneys. The application seeks the following orders:a.Spentb.That Bharat Himatlal Mehta and Ketan Himatlal Mehta be authorized to sign the instructions to Bank of India, Mombasa branch on behalf of all the executors of the estate of the deceased for the funds lying in credit in account SB 1101076 Dr H J Mehta which are vested in the applicant, Mrs Vandana Kirit Wadhar, as a beneficiary to be remitted to her account in the United Kingdom.c.That the costs of this application be in the cause.

7. The applicant’s case is that the third executor one Maria Carmen Fernandes is being deliberately obstructive in the proper and due administration of the estate in accordance with the law. As a result, the applicant has suffered and continues to suffer great prejudice and injustice as she continues to be kept out of the monies bequeathed to her by the deceased.

8. The respondent being Maria Carmen Fernandes did not file any response to the application. However, the fact that no response was filed does not mean that the application shall succeed automatically. The court will have to interrogate the merits of the application and make an independent finding. See Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli and 2 others (2018).

9. The applicant’s counsel Ms Mutune holding brief for Mr Ondego submitted orally and reiterated the applicant’s position in her application. Counsel told the court that she was relying on the supporting affidavit of Kirit Shantilal Wadhar thereof. I have considered the application herein which is not opposed. The only issue for determination is; whether the applicant is entitled to the relief sought.

10. The applicant’s case is that the third executor Maria Carmen Fernandes has not been cooperative in the administration of the deceased’s estate. That she has also been deliberately obstructive in the proper and due administration of the estate of the deceased in accordance with the law. She thus seeks to have the other two executors allowed to administer one of the assets of the estate being Account No SB 1101076300 to the exclusion of Maria. The respondent did not respond to the allegations advanced by the applicant.

11. The powers of an executor/executors are provided for in section 79 read together with section 80(1) of the Law of Succession Act which provide;79. The executor or administrator to whom representation has been granted shall be the personal representative of the deceased for all purposes of that grant, and, subject to any limitation imposed by the grant, all the property of the deceased shall vest in him as personal representative.80(1).A grant of probate shall establish the will as from the date of death, and shall render valid all intermediate acts of the executor or executors to whom the grant is made consistent with his or their duties as such.

12. In the case of In re Estate of Julius Mimano (Deceased) [2019] eKLR the court while dealing with the issue of powers of an executor stated as follows;“According to section 79 of the Law of Succession Act, the estate of a dead person vests in the personal representatives. In this cause, the deceased died testate. He named executors in his will, who have obtained probate to the will. It is the said executors in whom the assets of the estate vested by virtue of section 79 of the act. By virtue of the said vesting the said personal representatives became entitled to exercise the powers that are set out in section 82 of the Law of Succession Act, which are akin to those of an owner of the property. They can sue or be sued over the property, they can sell or enter into contracts in respect to it, among others. The personal representatives have authority from the grant of representation they hold, whether it is one of probate or of letters of administration, to handle estate property.”

13. This court in its ruling of July 30, 2020 dealt with similar issues in respect to the third executor where the other two executors sought to have her removed as an executor of the estate of the deceased. The court in its ruling paragraph 14 of the ruling stated,“…with profound respect, I find that the decision to remove and substitute the executor, is not anchored in law. Indeed, without the revocation of the grant, the unintended outcome of the orders therein, is the existence of 2 grants in respect of that estate, which is a legal anomaly.”

14. In this case there is a valid grant that is in force which has not been revoked. Also, the ruling of July 30, 2020 has not been challenged or appealed against. Thus in this case the power to administer the estate of the deceased still vests in the three executors by virtue of the will of the deceased dated September 11, 2005, the grant of probate issued on June 14, 2012 and confirmed on July 30, 2020 and a certificate of confirmation issued on September 25, 2020.

15. It is trite law that executors have a duty under section 83 of the Law of Succession Act to administer the estate of a deceased person. For avoidance of doubt, I wish to reproduce the said provision as hereunder;Personal representatives shall have the following duties—a.to provide and pay out of the estate of the deceased, the expenses of a reasonable funeral for him;b.to get in all free property of the deceased, including debts owing to him and moneys payable to his personal representatives by reason of his death;c.to pay, out of the estate of the deceased, all expenses of obtaining their grant of representation, and all other reasonable expenses of administration (including estate duty, if any);d.to ascertain and pay, out of the estate of the deceased, all his debts;e.within six months from the date of the grant, to produce to the court a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings therewith up to the date of the account;f.subject to section 55, to distribute or to retain on trust (as the case may require) all assets remaining after payment of expenses and debts as provided by the preceding paragraphs of this section and the income therefrom, according to the respective beneficial interests therein under the will or on intestacy, as the case may be;g.within six months from the date of confirmation of the grant, or such longer period as the court may allow, to complete the administration of the estate in respect of all matters other than continuing trusts, and to produce to the court a full and accurate account of the completed administration;h.to produce to the court, if required by the court, either of its own motion or on the application of any interested party in the estate, a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings therewith up to the date of the account;i.to complete the administration of the estate in respect of all matters other than continuing trusts and if required by the court, either of its own motion or on the application of any interested party in the estate, to produce to the court a full and accurate account of the completed administration.

16. The court in the case of In re estate of Julius Mimano (Deceased) (supra) had this to say regarding section 83 of the Law of Succession Act;“section 83 of the act imposes duties on personal representatives to pay for the expense of the disposal of the remains of the deceased, to get in or gather or collect the assets of the estate, to pay for the expenses of the administration of the estate, to ascertain and pay out all debts and liabilities, and eventually to distribute the assets amongst the persons beneficially entitled.”

17. It is clear from the will that only one property known as Mombasa block XXII/344 was specifically mentioned and shared equally between the two sons the applicants herein. The residue of the estate was to devolve to his daughter Vandana Kirit wadhar his daughter in case she survived him. There is no doubt that Vandana Kirit is alive. The court having made a finding that the funds in the subject account was part of the residual net estate and there being no appeal to the said decision, Vandana being the sole beneficiary of the funds in the account is entitled to enjoy her benefits without further delay.

18. Although there is no express provision on how to deal with uncooperative executors, an estate must not be held at ransom by an individual who deliberately refuses to discharge his duties as an administrator or executor. Under section 47 of the Law Of Succession Act, the high court has jurisdiction to entertain any application and determine any dispute under the act to pronounce such decrees and make such orders as may be expedient. Equally, rule 73 of the Probate and Administration Rules does bestow inherent powers upon the court to make such orders as may be necessary to make the ends of justice meet.

19. Taking into account that Maria is reluctant to sign necessary documents to complete the administration of the estate, this court is of the view that court orders do not issue in vain. Accordingly, I am satisfied that the application is merited and therefore allowed with orders as follows;a.That within 30 days from the date of this ruling, Maria the 3rd executrix herein to sign all necessary transfer documents to facilitate transfer of funds from account numbers 11O107600 Bank of india Mombasa to the bank account to be supplied by Vandana Kirit Wadhar through a notarized affidavit within the same period.b.That in default of such execution, the two remaining executors shall sign such documents as may be necessary upon the court approving the account submitted by the beneficiary.c.That the respondent herein shall meet the costs of the application.d.Mention on November 14, 2022.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 7TH DAY OF OCTOBER 2022………………J N ONYIEGOJUDGE