[2023] KEHC 27179 (KLR)

In re Estate of Karsandas Tribhovan Padia (Deceased) (Succession Cause 1272 of 2016) [2023] KEHC 27179 (KLR) (Family) (8 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27179 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 1272 of 2016

PM Nyaundi, J

December 8, 2023

Between

Sashikant Megni Shah

1st Applicant

Ashwin Karsandas Padia

2nd Applicant

and

Preeti Karsandas Tribhovan Padia

Respondent

Ruling

1. This ruling relates to the summons dated November 2, 2022 which was brought pursuant to rule 73 of the Probate and Administration Rules. The Applicants seek the following orders;1. Spent.2. That the restriction lodged by Preeti Karsanda Tribhovan Padia on all that property comprised in L.R No. Nyeri/Municipality Block 1/12 be lifted vacated and or removed.3. That the Deputy Registrar of this Honourable Court to sign the relevant applications and transfer forms in respect to all that property comprised in L.R No. Nyeri Municipality Block 1/12 in place of Preeti Karsandas Tribhovan Padia.4. That the costs of this application be provided for and borne by the Respondent.

2. The summons is supported by the affidavit sworn by both applicants on 2nd November 2022.

3. The Respondent, Preeti Karsandas Tribhovan Padia opposed the summons through her Replying Affidavit dated 14th February 2023.

4. The summons was canvassed by way of written submissions. The Applicants filed written submissions dated 4th May 2023 and further submissions dated 22nd May 2023 whilst the Respondent’s submissions are dated 19th May 2023.

Background 5. This Succession Cause relates to the estate of Karsanda Tribhovan Padia (hereinafter ‘the Deceased’) who died testate on 19th March 2016. The Deceased left behind a written Will dated 11th August 2015 in which he detailed the manner in which he wished his estate be distributed.

6. The assets left behind by the Deceased as indicated in the affidavit in support of Petition for Probate for letters of Administration with written will annexed dated 2nd August 2016 included the following;a.Value of shares in Highland Mineral Water Company Limited.b.Shares in Highland Investments Limited.c.Shares in Lenana Holdings Limited.d.Quoted shares as provided in Central Depository and Settlement (CDS) Account.e.Cash in Bank Accounts No. (1) 11077723 (2) 1138802387 in Kenya Commercial Bank both at Nyeri Branch.f.Cash in Bank Account No. 5011548018 in Giro Commercial Bank Banda Street Branch.g.Property Number Nyeri/Municipality Block 1/12 located in Baden Powel Roadh.Vehicle Toyota Prado Registration Number KAX 215 U.

7. In his written Will the Deceased appointed Sashikant Megnji Shah and Ashwin Karsanda Padia as Executors and Administrators. A Grant of Probate with Written Will was duly issued to the two on 10th November 2016. The said grant was confirmed on 28th June 2017.

8. The Applicants case revolves around a restriction lodged by the respondent in regards to Land Parcel No. Nyeri/Municipality Block 1/12. The Applicants contend that the Deceased bequeathed this suit property to Ashwin Karsandas Padia, Preeti Karsandas Tribhovan Padia and Dipak Karsandas Padia in equal shares on condition that Preeti Karsandas Tribhovan Padia shall not transfer the same to her spouse upon marriage.

9. After the grant was confirmed, they attempted to transfer the property to their names so that they could transfer the same to the other beneficiaries. The transfer was rejected by the Lands Registrar because of the restriction lodged by the Respondent. Efforts to convince the Respondent to lift the restriction have been futile and instead, the Respondent demanded Kshs. 40,000,000 to remove the restriction.

10. The Respondent refused to sign the transfer forms sent to her. The applicants argue that the property is on a lease by the government which expires in 2025 and therefore the estate risks to lose this property. They urged the court to allow their application.

11. The Respondent in her replying affidavit deponed that there was a delay to initiate the transfer of the property after the grant was confirmed which prompted her to lodge a restriction in order to protect her interests as a beneficiary. She argued that the Applicants have intentions to dispose of the property. She deponed that she stands to suffer prejudice if the application is allowed.

Analysis and Determination 12. I have carefully considered this summons, the Reply filed thereto as well as the written submissions filed. The issue for determination is whether this application has merit.

13. Sections 76, 77 and 78 of the Land Registration Act (Act No. 3 of 2012) sets out the procedure for the placement, notification, removal and variation of restrictions.

14. Section 78 would be of particular interest here. It reads: -78. (1)The Registrar may, at anytime and on application by any person interested or at the Registrar’s own motion, and after giving the parties affected by the restriction an opportunity of being heard, order that the removal or variation of a restriction.(2)Upon the application of a proprietor affected by a restriction, and upon notice to the Registrar, the court may order a restriction to be removed, varied, or other order as it deems fit, and may make an order as to costs.

15. A party affected by a Restriction would either apply for its removal to the Registrar under subsection (1) or to the Court under Subsection (2).

16. The Applicants have resorted to Court through the summons before me. Two issues immediately arise. First, on a plain reading of section 78(2), a Court may order the removal or variation or make any such order in respect to a Restriction only upon notice of the Applicant to the Registrar. In the matter before me there is no proof that the Registrar was served. That said, this Court takes the same position as Ouko, J (as he then was) took in Hellen W. Mungai vs Humphrey V. Mungai [2010] eKLR when considering a similar question in respect to section 138(2) of the retired Registered Land Act from which section 78(2) was replicated. The Judge stated;“There was no proof that the Registrar was served. However, it is my considered view that such service will only be necessary where the restriction is registered by the Registrar on own motion”. (sic)

17. In the matter before me the restriction was placed by the Registrar at the instance of the Respondent. I hold that service upon the Registrar was not essential.

18. The Respondent contends that she placed the restriction to protect her interests as she felt that the Applicants were not being transparent.

19. The Certificate of confirmation of Grant indicates that the distribution is to be as per will. There is no evidence that the intended transmission does not comply with the will. In the circumstances I allow the Application dated 2nd November 2022 and order as follows-1. That the restriction lodged by Preeti Karsanda Tribhovan Padia on all that property comprised in L.R No. Nyeri/Municipality Block 1/12 be lifted vacated and or removed.2. The Respondent to sign the relevant applications and transfer forms in respect to all that property comprised in L.R No. Nyeri Municipality Block 1/12 within 21 days and in default the Deputy Registrar High Court- Family Division to sign in her stead3. This being a family matter each party will bear their own costs

SIGNED DATED AND DELIVERED IN VIRTUAL COURT THIS 8TH DAY OF DECEMBER, 2023. P. NYAUNDIJUDGEIn the presence ofKibati Advocate for the RespondentSylvia Court Assistant