[2018] KEHC 9478 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYAAT NAIROBI

MILIMANI LAW COURTS

FAMILY DIVISION

SUCCESSION CAUSE NO. 1057 OF 2011

IN THE MATTER OF THE ESTATE OF JAYANTILAL

HARIBHAI BAKRANIA (DECEASED)

AGNES WAITHERA MWANGI..........APPLICANT /ADMINISTRATOR

VERSUS

HARSHA BAKRANIA................1ST RESPONDENT/ADMINISTRATOR

VALLABH DILIP BAKRANIA.................................... 2ND RESPONDENT

RULING

1. The deceased Jayantilal Haribhai Bakrania died intestate on 18th September 2010. According to the letter by the assistant chief of Uthiru/Ruthimitu location dated 10th May 2011, the deceased was survived by the following beneficiaries:-

a. Harsha Bakrania – wife (1st respondent);

b. Dipesh Bakrania – son;

c. Nisha J. Bakrania – daughter; and

d. Chandni J. Bakrania - son

2. On 3rd June 2011 the 1st respondent petitioned the court for the grant of letters of administration intestate in respect of the estate of the deceased. Before the grant could be issued, the applicant Agnes Waithera Mwangi filed her objection to the petition on 1st July 2011 on the grounds that the petition had not disclosed the fact that she was also a wife of the deceased with whom she had four children. Counsel for the applicant and the 1st respondent signed a consent dated 29th November 2013 which they filed in court on 11th December 2013 appointing the two as co-administrators of the estate. A joint grant was issued to the two on 29th January 2014. The grant is pending confirmation.

3. On 8th April 2014 the 1st respondent filed an application seeking orders compelling the 2nd respondent Vallabh Dilip Bakrania to file in court the full details of all the assets of the deceased, including the deceased’s shareholding in the various named companies to enable the administrators complete the administration of the estate of the deceased. The 2nd respondent is the deceased’s brother and shareholder in some of the companies. On 16th July 2014 the court issued an order allowing the application and directing the 2nd respondent to file in court, within 14 days, the details requested by the application. The summary of the deceased’s estate was filed in court by the 2nd respondent through his supplementary affidavit dated 2nd June 2015 and filed in court on 4th June 2015.

4. On 9th June 2016 the applicant brought the present summons dated 11th May 2016 seeking orders compelling the 2nd respondent to pay school fees for, and maintain, Ryon Muhia Bakrania, Tanisha Njeri Bakrania and Trina Wanjiku Bakrania. The application was based on the grounds that:

a. the applicant was the widow of the deceased;

b. the applicant and the deceased were blessed with four issues, namely: Ronnie Mwangi Bakrania, Ryon Muhia Bakrania, Tanisha Njeri Bakrania and Trina Wanjiku Bakrania;

c. the deceased was the sole breadwinner of the applicant and her children;

d. since the death of her husband, the applicant has been struggling to pay school fees for the children and fend for their upkeep as she has no other source of income;

e. the applicant’s children risked dropping out of school despite them being beneficiaries to the deceased’s vast estate; and

f. the estate was being solely managed by the 2nd respondent.

5. The application was supported by the affidavit of the applicant dated 11th May 2016. She stated that after the deceased passed away his estate was left under the control and management of the 2nd respondent; the 2nd respondent had declined to submit the records of the deceased’s schedule of assets despite an order of this court issued on 27th April 2015, hence rendering it difficult to proceed with the distribution of the deceased’s estate among the beneficiaries; that the 2nd respondent had neglected to maintain her family despite them having been fully reliant on the deceased during his lifetime; that she was not employed and only relied on her small business, family members and friends for support in feeding and educating the children but was now unable to raise their school fees; and that unless the court intervened her children were likely to miss out on education which is their basic right.

6. The application was opposed by the 1st respondent through her affidavit dated 4th August 2016. She stated that the applicant was not a widow of the deceased since she had never proved that she was married to the deceased under any law, and neither had she proved that the deceased was the father of her children. She further stated that until the beneficiaries of the estate were determined, it would be premature to order any payments out of the estate for the benefit of the applicant’s children.

7. The application was also opposed by the 2nd respondent. His case was that all the accounts of the deceased were held by the 1st respondent who was a co-administrator to the estate; and that he was not co-administrator to the estate and therefore was under no legal obligation to provide for either the applicant or her children. Further, he stated that the fact that he and the deceased were shareholders in the named companies did not make him responsible to the estate or its beneficiaries in the manner proposed by the applicant; that, in any case, he and the companies were separate legal entities. The obligations of the companies, if at all they had any obligation, did not attach to him. Lastly, he stated that the status of the applicant and those of her children had not been determined, as pleaded by the 1st respondent.

8. Counsel for the parties filed written submissions which I have considered.

9. It is not in dispute that the 2nd respondent is not the administrator of the estate of the deceased. Under sections 79, 82and83 of the LawofSuccession Act (Cap 160) it is only the administrator of the estate who can make any payments out of the estate to any beneficiary, or make any other payments that are necessary and are obtaining to the grant of the letters of administration. In other words, the 2nd respondent lacks legal capacity to make the payments that the applicant seeks in her application (Re. Estate of Nduba Thande (Deceased)[2013]eKLR).

10. Secondly, the 2nd respondent and other people were, together with the deceased, the shareholders of various companies (including Meltex International Ltd, Timco Chemical Industries Ltd and Tomwood Products Ltd). The companies are each a separate legal entity from the 2nd respondent (Salomon –v- Salomon & Co. Ltd [1897]Ac 22), and therefore he cannot be asked to draw monies from the accounts of the companies to pay the applicant or her children.

11. Lastly, the issue whether the applicant and her children were the widow and children, respectively, of the deceased has yet to be determined. The applicant stated that the deceased, while alive, maintained her and her children, and that they were therefore dependants in terms of section 29 of the Act. The respondents claim that the applicant was not the widow of the deceased, and her children were not the children of the deceased. The status of the applicant and the children is therefore a contentious issue that will be resolved at the time it is sought that the estate be confirmed.

12. In short, the applicant’s application cannot be allowed. It is dismissed. The issue of costs, however, will abide the cause.

13. I note with concern that these joint grant herein was issued on 29th January 2014. Since then the same has not been confirmed. So that the substance of this old dispute can be confronted and determined, I direct that the applicant and the 1st respondent shall each, within 30 days from today, file and serve application for confirmation together with sworn affidavits indicating who the beneficiaries of the deceased’s estate are, the extent of the deceased’s estate and a proposal on how the estate should be distributed. Each side shall, upon service, respond within 14 days. The matter shall be mentioned on 26th November 2018 for further directions on hearing.

DATED and DELIVERED at NAIROBI this 2ND day of OCTOBER 2018.

A.O. MUCHELULE

JUDGE