[2023] KEHC 25615 (KLR)

In re Estate of Mohamed Abdalla Mapapa (Deceased) (Probate & Administration 24 of 2018) [2023] KEHC 25615 (KLR) (21 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25615 (KLR)

Republic of Kenya

In the High Court at Mombasa

Probate & Administration 24 of 2018

G Mutai, J

November 21, 2023

Between

Gisela Mapapa

Petitioner

and

Abdu Mohamed Mapapa

1st Protestor

Salim Mohamed Mapapa

2nd Protestor

Ruling

1. The petitioner herein moved this court vide petition for grant of letters of administration intestate filed on 10th July 2018 in respect of the estate of Mohamed Abdalla Mapapa (the deceased herein). The grant of letters of administration intestate was issued on 4th October 2019 to the petitioner herein.

2. Vide a summons for confirmation of grant dated 1st September 2020 and filed on 20th January 2021, the petitioner sought to have the grant issued to her confirmed. The said summons is supported, inter alia, by the affidavit of the petitioner.

3. The protestors were aggrieved by the summons. In response thereto, they filed an affidavit of protest against the confirmation of grant. The said affidavit, sworn by Abdu Mohamed Mapapa, on his own behalf, as well as on behalf of Salim Mohamed Mapapa, on 16th March 2023 stated that their protest to the summons for confirmation is based on the fact that the said summons omits part of the estate and liabilities of the deceased as follows; the deceased and the petitioner lived together in Germany as husband and wife for 30 years and they jointly owned in equal shares: a solar studio, boutique and massage praxis (hereinafter referred to as the business), a matrimonial house in Germany and a matrimonial house at Nyali in Mombasa.

4. The protestors stated that the relationship between the deceased and the petitioner irretrievably broke down, and the deceased was forced to travel back to Kenya, where he stayed until his demise. It is averred that the petitioner sold the business and the matrimonial house in Germany in the year 2014 while the deceased was ailing in Kenya and that she has refused to disclose the sale price. The protestors claim that the deceased never received his 50% share of the sale proceeds.

5. It was further stated that the estate of the deceased should include a 50% share of the undisclosed proceeds of the sale of the business, a 50% share of the proceeds of the sale of the house in Germany and a 50% share of the house situated at Nyali Mombasa. Regarding liabilities, it is stated that they include accrued debts/liabilities; unpaid land rates to the County Government of Mombasa, unpaid utility bills for lighting and water, unpaid cleaning bills by Ken Cleaner, unpaid Kenya Revenue Authority bills/taxes and salary and employment benefits due to Thomas Kalume Washe, a private security guard.

6. The protestors averred that the deceased was survived by one widow and eight children namely; Fatuma, Salim Mohamed Abdallah Mapapa, Ramadhan Mohamed Mapapa, Abdul Mohamed Mapapa, Fatuma Mapapa, Liza Mapapa, Sofia Mapapa, Fatuma Mapapa and Miriam Mohamed Mapapa.

7. The protest was canvassed by way of viva voceevidence.

8. The first witness, 1st protestor, testified that he was the firstborn son of the deceased. He is opposed to the confirmation of grant due to the fact that his stepmother (the petitioner/respondent) did not disclose all material facts in respect of assets and liabilities of the estate of the deceased.

9. In cross-examination, it was his evidence that his father had shares in the German assets (a house and a business) which have not been incorporated. Further, the said assets were sold by the petitioner while the deceased was still alive. The deceased claimed his share of the sale proceeds from the petitioner but was unsuccessful. He further told the court that in Islam, debts must be paid first.

10. In re-examination he told the court that the petitioner had never denied that the deceased had a house and a business in Germany and was entitled to an equal share of the same. He testified that the said debts were still pending even when the deceased was alive.

11. The petitioner, on the other hand, in her evidence, told the court that she was relying on her affidavit sworn on 1st September 2020 as her evidence-in-chief. Further, the property belonged to her and the deceased. She testified that the businesses referred to by the protestors were sold more than 20 years ago, while the house was sold in 2014.

12. During cross-examination, it was her evidence that the house and business in Germany were jointly owned in a ratio of 50:50. The house was sold for 140,000 Euros, out of which she paid 120,000 Euros to the bank.

13. It was her further evidence that the deceased was entitled to a 50% share of the sale proceeds. Although she claimed to have given the deceased his portion, she could not remember when this happened. She averred that her daughter Sofia delivered the money to the deceased in the year 2015 when she was in Kenya. That she had given her 30,000 Euros to give to the deceased, and she was sure she delivered the same, however, the deceased did not sign for the same. She further told the court that she gave 10,000 euros to a friend whom she couldn’t name to give to the deceased. However, the deceased did not sign for the said amount in evidence of receipt.

14. On the bills /debts in respect of the house in Nyali, she told the court that the expenses accrued during the lifetime of the deceased, and since she stays in Germany, she is not the one who should pay the bills.

15. In re-examination, she told the court that she sold the German house to settle the Kenyan debts.

16. On closure of the protestors and petitioner/respondent case, the court directed the parties to file written submissions. Subsequently, the protestors, through their advocates Omar Said & Company Advocates, filed submissions dated 15th August 2023. Counsel identified three issues as coming for determination, namely whether the deceased received his 50% share of the proceeds of the sale of the house and business in Germany; whether the 50% share of proceeds of the sale of the house and business in Germany form part of the estate of the deceased; and whether the estate of the deceased is liable for the bills and expenses accruing in respect of the house erected onLR3932/I/MN.

17. On the first issue, counsel submitted that the applicant admitted to selling the house and the business in Germany but failed to disclose the selling price. The deceased never received his share of the sale proceeds, a fact that he made clear at his time of death. The petitioner did not provide sufficient evidence to prove otherwise.

18. On the second issue, counsel submitted that the disclosed sale amount of 140,000 Euros 50% belongs to the estate. He urged the court to direct the petitioner to pay the same immediately in default, the same be set off against her 50% share in the Mombasa house.

19. On the third issue, counsel submitted that it is trite law that debts and liabilities ought to be paid first before the net estate is distributed to the beneficiaries. That the bills incurred were necessary for the maintenance of the house and its protection.

20. On the other hand, the petitioner, through her advocates NA Ali & Company Advocates, filed her written submissions dated 27th September 2023. Counsel submitted on one issue, namely, whether the properties which were situated in Germany do form part of the estate. Counsel relied on Section 4(1)(a) of the Law of Succession Act and submitted that where the immovable property belonging to a deceased person is situated outside Kenya, then the same would be dealt with in accordance with the laws of that country. Thus, the law applicable in this case is the law of Germany as the subject properties were in Germany, and therefore, this court lacks jurisdiction to deal with them. The said properties cannot be said to form part of the estate as they were co-owned by the deceased and petitioner; they were sold prior to the deceased’s death and, therefore, ceased to exist prior to his death. Thus the subject properties cannot be said to be free properties forming the deceased's estate.

21. On the issue of liabilities counsel submitted that the claim is very general and vague. He urged that the protestors had not proved the same, and thus, the court cannot attach liabilities whose existence has not been proved.

22. In conclusion, counsel urged the court to dismiss the protest.

23. I have considered the protest and the response therein, the oral evidence and also the rival submissions by both counsels. The issues that call for my determination are:-a.Whether this court has jurisdiction to consider immovable property existing outside Kenya; andb.Whether the orders sought should be issued.

24. The Supreme Court, in the case ofSamuel Kamau Macharia & another vs Kenya Commercial Bank Limited & 2 others[2012] eKLR stated:-“A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with the counsel for the first and second respondents in his submission that the issue as to whether a Court of law has jurisdiction to entertain a matter before it is not one of mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the Court cannot entertain any proceedings.”

25. This court derives its jurisdiction from Section 47 of the Law of Succession Act and rule 73 of the Probate and Administration Rules.Section 47 of the Law of Succession Act provides that:-“The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient:Provided that the High Court may for the purpose of this section be represented by Resident Magistrates appointed by the Chief Justice.”Rule 73“Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”

26. The court in the case of In re Estate of Julius Ndubi Javan (Deceased)[2018] eKLR, in discussing the jurisdiction and or duty of the Probate Court stated:-“The primary duty of the Probate Court is to distribute the estate of the deceased to the rightful beneficiaries.”

27. The duty of this court is to determine the assets of the deceased, the survivors of the deceased and the persons with beneficial interest, and finally to distribute the assets amongst the survivors and the persons beneficially interested.

28. The petitioner’s argument is that this court has no jurisdiction on the grounds that the subject properties are situated in Germany. Section 4 of the Law of Succession Act provides:-1. Except as otherwise expressly provided in this Act or by any other written law-a.succession to immovable property in Kenya of a deceased person shall be regulated by the law of Kenya, whatever the domicil of that person at the time of his death;b.succession to the movable property of a deceased person shall be regulated by the law of the country of the domicil of that person at the time of his death.

29. The above provision, which is the provision that the petitioner has relied on, does not provide for the law applicable when dealing with immovable properties of a deceased person situated outside Kenya. However, Section 4(b) is clear on the law applicable in dealing with movable property of a deceased person.

30. In this case, the claim is for a monetary share, which resulted from the sale of the subject properties, which amounts to succession to the movable property of the deceased. Thus the same is regulated by the Law of Succession Act for the reasons that the deceased died domiciled in Kenya.

31. Subsequently, it is my finding that this court has jurisdiction to determine this matter.

32. The question that then arises is whether the subject properties are free properties of the deceased and or are properties forming part of the estate of the deceased subject to distribution.

33. The court in the case ofAdan Chuda Sode vs Madina Oshe Jira & another [2021] eKLR the court stated:-“Section 3 of the Law of Succession Act defines an “estate” to mean the free property of a deceased person, while “free property” in relation to a deceased person is defined to mean the property of which that person was legally competent freely to dispose of during his lifetime and in respect of which his interest has not been terminated by his death. In In re Estate of Job Ndunda Muthike (Deceased) (2018) eKLR the court (OdungaJ) while expounding on the said section stated that:It is therefore clear that any property which the deceased was not legally competent freely to dispose during his lifetime and in respect of which his interest had been terminated by his death cannot form part of his estate and cannot be the subject of an application for confirmation of grant.In my considered view, I would think that “free property” of a deceased person such as land can be proved by documents such as a title deed, allotment letter, lease agreement, sale agreement etc. The question in this case is whether unregistered land constitutes free property of a deceased person.The answer to this question can be determined by examining the duty of a probate court. The duty of a probate court is to identify the estate of a deceased person, identify the lawful beneficiaries to the estate and distribute the same to the beneficiaries. In Re Estate of Alice Mumbua Mutua (Deceased) [2017]eKLR MusyokaJ. elucidated this role as follows:“…..The Law of Succession Act and the Rules made thereunder are designed in such a way that they confer jurisdiction to the probate court with respect to determining the assets of the deceased, the survivors of the deceased and the persons with beneficial interest, and finally distribution of the assets amongst the survivors and the persons beneficially interested. The function of the probate court in the circumstances would be to facilitate collection and preservation of the estate, identification of survivors and beneficiaries, and distribution of the assets.The duty of a probate court ends at distribution of the estate and the process is then taken over by other bodies who have the mandate to transmit the property to the beneficiaries. The process of distribution is therefore the beginning of other processes geared towards transmission of the property from the deceased to the beneficiaries…What it means in the whole of this process is that the property to be distributed by a succession court has to be identifiable and clearly defined. Where the property involved is land, it has to be identified by a land reference number. Otherwise where the land is not registered as in this case, a succession court would be engaging in an exercise in futility in dealing with such land as the process of transmission cannot be completed at the lands office. Courts of law do not act in vain. In my considered view, unregistered land cannot be construed to mean “free property” of a deceased person. Distribution of such land does not fall within the mandate of a succession court.”

34. The fact that the two properties were situated and or disposed of in Germany is not in dispute. This Court is not, however, able to tell whether the deceased received his portion of the sale proceeds or not. The petitioner told the court that the house was sold at 140,000 euros in order to settle debts of the house in Nyali during the lifetime of the deceased, who signed the relevant documents of sale. For the business, it was her evidence that it was sold more than 20 years ago. She did not tender any evidence to prove the same. In my view, the alleged property is speculative. It cannot, therefore, be said to be free property of the deceased capable of being distributed.

35. On the issue of liabilities, the protestors have argued that the estate has accrued liabilities in terms of property rates,KPLCpower bills, water bills, KRAtaxes, cleaning services by Keen Cleaner and salary arrears for security guard.

36. The petitioner questioned why she should settle the said liabilities, whereas she does not stay in the subject property.

37. Section 83(d) of the Law of Succession Act provides that a personal representative has a duty to ascertain and pay, out of the estate of the deceased, all his debts.

38. In the case ofIn re Estate of SMM (Deceased)[2021] eKLR the court stated: -“Under the law of succession, debts and liabilities take precedence over distribution of the estate. They should be settled first before the estate is offered for distribution to the survivors. What should be available at distribution should be the net intestate estate, that is after paying off debts and liabilities, or taking away what is due to the creditors, liabilities and purchasers. That is the spirit of section 83(d), (e) and (f) of the Law of Succession Act. All the debts of the estate are to be ascertained and paid out; after which the administrators ought to produce a full and accurate inventory of the assets and liabilities of the estate, and a full and accurate account of all their dealings with the estate up to the date of the account; and after that distribute all the assets that remain after payment of expenses and debts amongst the persons beneficially entitled. But let the provisions speak for themselves:83. Duties of personal representativesPersonal representatives shall have the following duties—(a)…(b)…(c)…(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)…(h)…”The provisions cited above are clear on the sequence of events. First of all, the administrators are to ascertain and settle debts and liabilities, after that they should render an account, which should cover an inventory of the assets and liabilities that they would have ascertained, and an account of the dealings with estate up to the point of rendering accounts. “Dealings” would cover such activities as settlement of any debts and liabilities of the estate, for it is after that that we move to the next activity, which is distribution of the estate, after confirmation, after the debts have been settled. The account should, therefore, relate to what the administrators have done with the estate, after ascertaining the assets and liabilities. One of the things that the administrators have to do before distribution is settle debts and liabilities, and the account before distribution should cover the same. The administrators have to explain to the court what they have done about the debts, before they propose distribution of the net estate to the beneficiaries…It would be useful, and would reduce lengthy litigation at confirmation of grant, if administrators were to settle the debts of the estate prior to applying for confirmation of grant, so that the proposals placed before the court at confirmation would relate only to the net estate, and limited to the survivors and beneficiaries. Debts are often contested, by the administrators themselves, or the survivors and beneficiaries, and it would help if those contests are carried out outside of the confirmation process.”

39. From the above provision and case law it is evident that it is the duty of a personal representative to ascertain and pay out all debts and or liabilities of the estate of the deceased before the distribution of the same. In this case the personal representative of the deceased herein is the petitioner and thus the duty to settle the debts/bills and or liabilities lies with her before the distribution of the estate. I must note that none of the parties has tendered any evidence to prove the liabilities however, the existence of the same has not been disputed.

40. The upshot of the above is that the protest fails in one part in respect of the claim for 50% of the undisclosed proceeds of sale of the business and 50% share of the proceeds of sale of the house in Germany. The protest succeeds in respect to the settlement of the debts and or liabilities before the distribution of the estate of the deceased herein. I, therefore, direct the petitioner to ascertain and pay out all liabilities in respect of the estate herein before the distribution of the estate.

DATED, SIGNED AND DELIVERED IN MOMBASA THIS 21TH DAY OF NOVEMBER 2023 VIA MICROSOFT TEAMSGREGORY MUTAIJUDGEIn the presence of:Mr. Hamisi for the Protestor;Mr. Hassan for the Petitioner/Respondent;