[2023] KEHC 25805 (KLR)

In re Estate of Mohamed Mwinzagu Bin Mwarabu (Deceased) (Probate & Administration 91 of 1969) [2023] KEHC 25805 (KLR) (10 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25805 (KLR)

Republic of Kenya

In the High Court at Mombasa

Probate & Administration 91 of 1969

G Mutai, J

November 10, 2023

IN THE MATTER OF THE ESTATE OF MOHAMED MWINZAGU BIN MWARABU AND IN THE MATTER OF AN APPLICATION FOR LETTER OF ADMINISTRATION BY ALI MOHAMED MWINZAGU

Between

Ali Mohamed Mwinzagu

Administrator

and

Abdulnassir Abdulrahman Mohamed

1st Applicant

Ali Abdulrahman Mohamed

2nd Applicant

Ruling

1. Before this court is a Notice to Show Cause dated 30th August 2019 and amended on 23rd April 2021. Vide the said notice; the applicants seek to have the respondent appear in court to show cause why he should not be committed to civil jail in the execution of the orders issued by the Court on 15th November 1988. The same was filed by Abdulrahman Mohamed Mwinzagu, who is now deceased (herein referred to as “original applicant” or “applicant then”).

2. In response the respondent filed a replying affidavit sworn on 14th February 2020. He stated that he was appointed as an administrator of the estate of the deceased herein via a grant of letter of administration dated 26th June 1970. On 15th November 1988 the court issued orders relating to the administration of the estate which are subject of the Notice to Show Cause.

3. In order 1(a), the court ordered him to sell and transfer a house without land belonging to the estate to Mrs Khadija Sizi at a price of Kes.105,000/-. He stated that before he could be issued with the grant of letters of administration, one Mohamed Ali Mwinzagu sold the said house, purporting to be the administrator. To protect the estate, he sought the intervention of the court.

4. He further stated that he proceeded to file Civil Case No.960 of 1981 in respect of the administration of Plot No.376/XVIII Sarigoi, Mombasa. Judgement was issued in the said cause on 29th June 1983. The purchaser refunded the money obtained through the illegal sale through his advocates, then H.A. T Anjarwalla Advocates. The original applicant then indicated that he had another buyer for the said plot as well as Plot No.MN/139/1. The purchaser, however, never showed up.

5. He stated that he proceeded to sign and transfer Plot No.376/XVIII Sarigoi to one Khadija Abdalla Sizi. His advocates, H.A.T Anjarwalla Advocates, received the payment on his behalf. The said payment was not disbursed to him. Due to the said failure, he was forced to file High Court Civil Suit No.24 of 2007 against them. On 12th March 2007, the said advocates wrote a cheque of Kes.95,000/- being money received from the sale of the said plot. They deducted Ksh20,000 being legal fees from the total amount of Kes.115,000/-. The money was paid to his advocates, Maranga Maosa Advocates and the suit was marked settled. He received news of the demise of his advocate, Maranga Maosa, sometime in 2017. Since the demise of his advocate, he has not been able to recover the Kes.95,000/-. However, he is ready to reimburse the amount to the beneficiaries of the estate of the deceased herein.

6. He averred that in order 1(b), the court ordered him to sell and transfer Plot No.139 Section I MN to Eliud Kirema Mukuongo. The said buyer never showed and could not be traced for a long period which led to the sale of the said plot to Mansur Ali on 23rd June 2010 at the price of Kes. 1,500,000/-. After the sale, he invited all heirs of the estate to go for their shares, but they never showed up, except for Khadija Mohamed Mwinzagu. He was willing to share the proceeds of the said plot with the beneficiaries of the estate.

7. He averred that in order 1(c) he was directed to sell all the remaining plots belonging to the estate by way of public auction, in which the heirs, including the administrators of the estate, were at liberty to bid. However, with the order not being specific and particular, it became very difficult to identify the said plots as he had to do due diligence to identify them.

8. He stated that Plot No. VIMN/2110 was sold by the late Bikichanga Mwinyimkuu, and thus, he could not account for the same. Plot No. VIMN/2112 is owned in equal, undivided shares by the estate of Mohamed Mwarabu and the estate of Bikichnga Mwinyimkuu. The same is occupied by the beneficiaries of the estate of Bikichanga Mwinyimkuu. Plot No. VIMN 2113 was sold to Said Shanim by the late Bikichanga Mwinyimkuu. He cannot, therefore, account for the same as it is also registered in the name of Bikichanga Mwinyimkuu. Plot VIMN/2116 is in half-undivided shares of Bikichanga Mwinyimkuu and Mohamed Mwinzagu, from which they receive Kes.12,000/- per year. However, the outstanding land rates are Kes.5,021,027/-. Plot No.VI/MN/2118 similarly is in half undivided shares of Bikichanga Mwinyimkuu and Mohamed Mwinzagu; the same is registered under the name of Bwana Mkuu, and it has outstanding land rates of Kes.622,571/-. After the demise of Bikichanga Mwinyimkuu, one Kibwana Mwinyikombo took over the administration of the plots, and since then, returns have not been forthcoming.

9. He averred that Kibwana Mwinyikombo ceased administering the estate of Bikichanga Mwinyimkuu and requested him to apply for letters of administration, which he did.

10. He stated that the original applicant was the one who was collecting rent from Plot No.161 Changamwe and did not clear the land rates of the said plot, which he had to clear.

11. He could not fulfil order 1(c) due to the huge arrears on land rates and penalties, which he has been unable to clear as the ground rent collected is not sufficient to settle the arrears. Also, due to the ownership system of houses without land, the estate owns the land/plots, but there are tenants who own the houses on the land. Further, due to the fact that some are owned in half-undivided shares, the involvement of the beneficiaries of the other estates is required. Information which the original applicant was aware of.

12. The applicant filed a supplementary affidavit sworn on 6th March 2020. In the said affidavit, it was deposed that 32 years is too long a time for the respondent to fail to comply with court orders of 15th November 1988. He stated that from the respondent’s annexures “AMM -5” and “AMM -7” to “AMM-12”, the respondent has been suing and even trading in his own capacity and not as an administrator of the estate of the deceased herein. The respondent and his family have benefitted from the estate herein for over 50 years and have failed to administer the estate as required by law.

13. He stated that the respondent was administering the estate without transparency and accountability. The respondent did not consult him before selling Plot No. 139 Section 1 MN. The respondent should have given the heirs of the estate first priority to purchase the said plot before selling it to his son. He further deposed that the said plot was sold below the market value.

14. He stated that Plot No.2112 Section V1 Changamwe belongs to his late mother and her siblings and thus does not form part of the deceased's estate herein.

15. He deponed that the respondent, having been an administrator of the estate, was liable to pay all land rates. Thus, he cannot exonerate himself from the same.

16. He stated that it was his prayer that the shares of all beneficiaries be determined and distributed according to Islamic law by an independent Muslim scholar, preferably the Chief Kadhi or Sheikh Hammad Kassim. He also urged the court to allow the notice to show cause as prayed.

17. The respondent filed a further affidavit sworn on 22nd July 2020 and filed on the same date. He stated that he had complied with orders 1(a) and 1(b) as he had shared all proceeds from the sale of Plot No.139 Section 1 MN and the house in Sarigoi to all beneficiaries. Plot No.139 Section 1 MN did not bring in any income for the period 26th June 1970 to 3rd June 2010 as it was vacant. It also had land rates arrears of Kes.94,076/75, which he paid at the time of the sale of the same and that he had not been indemnified.

18. He stated that the remaining plots of the estate were: undivided ½ share of plot VI/MN/2112, undivided ½ share of Plot VI/MN/2116 and undivided ½ share of plot VI/MN/2118. He reiterated his position in his replying affidavit on the challenges he has faced administering the said plots. He stated that he was willing and ready to share the monies collected from the administration of the deceased's estate herein in accordance with Islamic law.

19. The applicants herein filed a reply to a further affidavit sworn on 10th May 2021 and filed on 4th June 2021, sworn by the 1st applicant. They reiterated the contents of the supplementary affidavit sworn on 6th March 2020 and filed on 9th March 2020 and stated that the respondent as an administrator had the duty to keep records, including receipts of each payment he made and thus annexure “AMM-5” was insufficient prove as they cannot ascertain when the said expenses were incurred. They urged the court to allow the Notice to Show Cause as prayed.

20. The respondent filed a further affidavit sworn on 8th June 2021. He denied the allegations by the applicants in their reply to his further affidavit sworn 10th May 2021and stated that he had not seen any grant ad litem authorising the applicants to continue with the case hereinafter the demise of his brother and thus all their pleadings ought to be expunged from the record.

21. He reiterated the position in his replying affidavit and further affidavit. He urged that parties entered into a consent on 10th March 2020, which was not set aside, and thus is still binding.

22. He denied the allegation that he had sold a portion of Plot No.139/1/MN to Dinesh Manji Varsani and stated that the said property had squatters and thus could not be sold.

23. He stated that he has always involved the beneficiaries through regular meetings and has always shared the proceeds from the estate fairly. He urged that in his dealings, he has always had the best interest of the estate.

24. The respondent filed a list of documents dated 6th April 2022 and filed on 9th May 2022 and a list of documents dated 4th July 2022 and filed on 12th July 2022.

25. The applicants, on the other hand, filed list documents dated 4th October 2022 and filed on 5th October 2022.

26. This honourable court, on 19th June 2023, directed parties to file written submissions to the Notice to Show Cause. Subsequently, the applicants, through their advocates A.O Hamza & Company Advocates, filed written submissions dated 4th July 2023.

27. Counsel submitted that the respondent had been the administrator of the estate of the deceased herein since 1970, and to date, he has failed to fulfil his obligation of administering the estate by neglecting and or refusing to render a full account of the estate and the proceeds of the sale of the deceased’s properties assets.

28. Counsel further submitted that the respondent only complied with the orders of 15th November 1988 on 10th March 2020 following the orders of the court. However, the original applicant did not have the intention of entering into the consent of 10th March 2020 given the respondent’s conduct. He only did so in compliance with a court directive on the same. That from the face of the consent it is evident that the respondent misappropriated the deceased's estate.

29. On the mud and wattle house on Plot No.376/XVIII Sarigoi, counsel submitted that the respondent sold the same on 5th February 1990 for Kes.115,000/- but only availed Kes.70,000/- for distribution contrary to his averments in his replying affidavit.

30. On Plot No.139 Section 1 MN, counsel submitted that the applicants were not consulted before the sale of the same by the respondent. The respondent ought to have given the estate's heirs the first priority to buy the said plot. Further, the sale price was below the market value as the plot would have fetched more than Kes.1,500,000/-.

31. Counsel submitted that there was new evidence that the respondent had already sold a portion of the said plot to one Dinesh Manji Varsani at a consideration of Kes.5,500,000/-, information which he did not disclose to the beneficiaries or the court. Further, the respondent had failed to administer the estate as required by law, and thus, the sale of plot No.139/1/MN should be revoked.

32. On the remaining plots counsel submitted that the respondent was aware of what forms the same as he is the one who applied for the grant of letters of administration. Counsel urged the court to expunge paragraph 8(b)(d)(i)(j) and (k)and (v) of the replying affidavit sworn on 14th February 2020.

33. On Plot No.2118 Section.VI Changamwe, counsel, submitted that the same belongs to the late Bikichanga who sold half of it to one Bwana Mkuu and was thus not part of the estate.

34. On Plot No. 2112 Section VI Changamwe, counsel submitted that it belongs to the respondent’s late mother and her siblings and, thus, not part of the estate of the deceased herein.

35. It was submitted that it is unclear what forms the remaining plots and thus the respondent should be ordered to define the same. The money collected from rentals was sufficient to cater for land rates on the immovable properties; however, the respondent failed to cater for the same or maximise on the County Government waiver in 2019, and thus, he should be ordered to account for the same.

36. Counsel relied on Section 83 of the Law of Succession Act on duties of personal representatives and submitted that the respondent has failed to provide full and accurate accounts of the deceased's estate. Counsel also relied on the case of In re Estate of Des Raj Gandhi (Deceased) (2021) eKLR, where the court held that the duty to account for the assets, liabilities and dealings of any estate purely lies on the personal representatives. Counsel further submitted that 35 years is a long time for the respondent not to comply with court orders of 15th November 1988. Further, the respondent has committed several offences under section 95 of the Law of Succession Act.

37. In conclusion, counsel urged the court to allow the Notice to Show Cause.

38. The respondent, on the other hand, through his advocates Mulago-Arika & Co. Advocates, filed written submissions (undated) and submitted on one issue, namely, whether there are sufficient reasons to issue a warrant of arrest in execution in execution of the notice to show cause.

39. Counsel referred the court to the consent dated 10th March 2020, recorded in court by the parties and produced in response to the Notice to Show Cause vide list of documents dated 6th April 2022. The issues raised by the applicants were already settled by the consent. Counsel further- submitted that the consent is still active and binding and urged the court not to entertain litigation on issues already settled by the same.

40. On the argument that the original applicant had no intentions of entering into the said consent counsel submitted that the same cannot stand as the parties are represented by counsels who executed the same on behalf of their respective clients.

41. On issues not settled by the consent, counsel referred the court to the respondent’s replying affidavit and further affidavit dated 22nd July 2020 and submitted that the same provided detailed accounts of the estate, thus settling the said issues.

42. Counsel submitted that the respondent had made significant steps in distributing the estate despite the challenges, including but not limited to frustrations from the personal representative of the estate of Bikichanga Mwinyimkuu, which owns three plots in ½ undivided shares with the subject estate and also the insistence by the applicants to have their shares without any encumbrances especially the payment of rates arrears which are an expense of the estate which ought to be realized from the estate.

43. In conclusion, counsel submitted that the respondent had done all that is necessary to distribute the estate of the deceased despite the challenges faced, and thus, there was no reason to issue warrants of arrest. Counsel urged the court not to allow itself to be used to settle vendettas and scores already settled by the consent.

44. I have considered the Notice to Show Cause, the responses therein and the rival submissions by both counsels. In my view, the issue that calls for my determination is whether I should allow the notice to show cause.

45. Abdulrahman Mohamed Mwinzagu(deceased) (the original applicant) moved this court via the Notice to Show Cause seeking the arrest and detention of the respondent in the execution of the orders of 15th November 1988. He also prosecuted the application but unfortunately died before the same could be determined. His death was brought to the attention of the Court, and the court directed the applicant’s counsel to take instructions on filing of grant of representation. On 23rd March 2021, Mr. Hamza, counsel for the applicants, informed the court that they had obtained the grant of representation but were not able to file the same due to systems maintenance. The same was then filed together with the amended Notice to Show Cause of 23rd April 2021, which is subject to determination thus, the allegation by the respondent that he had not seen any grant-ad-litem authorising the applicants to continue with the case herein after the demise of his brother and thus all their pleadings ought to be expunged from the record is unfounded.

46. The orders in question are orders of 15th November 1988 issued by Bosire J(as he then was) upon hearing an application for administration by the administrator. The learned judge issued the following orders:-a.that the administrator be and is hereby granted leave to: -i.sell and transfer the house without land belonging to the estate to Mrs Khadija Sizi at the price of Kes.105,000/-;ii.sell and transfer Plot No.139, Section 1, MN, belonging to the estate to Mr Eliud Kirema Mukuongo at the price of Kes.100,000/-; andiii.sell all the remaining plots belonging to the estate by public auction at which the heirs, including the administrator of the estate, are hereby given liberty to bid.

47. The parties herein entered into a consent dated 10th March 2020 as follows:-a.Order 1(a) of the order dated 15th November1988, has been fully complied with by the respondent. The house was sold at Kes.115,000/- but the available amount for distribution is Kes.70,000/-;b.Order 1(b), in partial agreement, agreed to share out the proceeds from the sale of Plot No.139 Section 1 MN, which was sold at Kes.1,500,000/- on 23rd June 2010;c.The share of the above 1 and 2 is per the annexed schedule of distribution.On issues in dispute the parties listed them as follows; issue of the respondent providing accounts in respect of Plot 139 Section I MN as from 26th June,1970 to 23rd June,2010; in respect to order 1(c) of the order dated 15th November, 1988, the following has not been agreed;i.What forms part of the remaining plots; andii.Provision of a statement of accounts from 26th June 1969 to date.

48. Parties have brought up the issue of consent, and I note that on 4th May 2021, counsel for the applicants, Mr. Hamza, told the court that the consent had been satisfied in terms of orders 1,2 and 3. However, I must note that the consent is not the subject of the application and, therefore, will not delve into it as it is still binding.

49. On the issue of the notice to show cause, powers of a court to enforce execution are provided for in Section 38 of the Civil Procedure Act which provides that:-“Subject to such conditions and limitations as may be prescribed, the court may, on the application of the decree-holder, order execution of the decree—a.by delivery of any property specifically decreed;b.by attachment and sale, or by sale without attachment, of any property;c.by attachment of debts;d.by arrest and detention in prison of any person;e.by appointing a receiver; orf.in such other manner as the nature of the relief granted may require:Provided that where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the court, for reasons to be recorded in writing, is satisfied—a.that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree—i.is likely to abscond or leave the local limits of the jurisdiction of the court; orii.has after the institution of the suit in which the decree was passed, dishonestly transferred, concealed or removed any part of his property, or committed any other act of bad faith in relation to his property; ora.that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree, or some substantial part thereof, and refuses or neglects, or has refused or neglected, to pay the same, but in calculating such means there shall be left out of account any property which, by or under any law, or custom having the force of law, for the time being in force, is exempt from attachment in execution of the decree; orb.that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account.”

50. In dealing with the issue of execution of orders or decree by committal to civil jail, the court in the case of George Arab Muli Mwalabu versus Senior Resident Magistrate Kangundo & 2 others; Festus Mbai Mbonye (Interested Party) [2019] eKLR stated:-“However, it is my view that committal to civil jail is not a means of satisfaction of a decree. Whereas it is a means by which compliance is sought to be enforced, it does not in itself amount to a satisfaction of a decree. In other words, it is a means to an end rather than an end itself. That there is a distinction between the satisfaction of a decree and the committal to civil jail for failure to satisfy a decree is clearly discernible from section 42 of the Civil Procedure Act which provides as hereunder:1. Every person detained in prison in execution of a decree shall be so detained—a.where the decree is for the payment of a sum of money exceeding one hundred shillings, for a period not exceeding six months; andb.in any other case, for a period not exceeding six weeks:Provided that he shall be released from such detention before the expiration of the said period of six months or six weeks, as the case may be—i.on the amount mentioned in the warrant for his detention being paid to the officer in charge of the prison; orii.on the decree against him being otherwise fully satisfied, if the court so orders; oriii.on the request of the person on whose application he has been so detained, if the court so orders; oriv.on the omission of the person, on whose application he has been so detained, to pay subsistence allowance.2. A judgment-debtor released from detention under this section shall not merely by reason of his release be discharged from his debt, but he shall not be liable to be rearrested under the decree in execution of which he was detained in prison. [Emphasis mine].This position was poetically pronounced by Kuloba, J in Mbugua vs. Mbugua [1992] KLR 448 where the learned Judge expressed himself as follows:“The committal to civil jail will be an end in itself, serving no useful purpose. It will be for vindictiveness only; but civil justice is placatory, not retaliatory or revengeful. As Courts administering civil justice we do not sit here unleashing reprisals of vengeance to satisfy egoistic vendetta veneered with some court orders. Committal to civil jail is redressal, not merely punitory. In this case if the Court sends the defendant to jail for six months, the wrong will not have been redressed; her sojourn in jail will be punishment to her, but it will not enforce the order said to have been disobeyed.”It therefore follows that the course of committal to civil jail will only be resorted to in appropriate cases and the guidelines for determining whether a particular case is appropriate for such course must necessarily depend on whether the conditions stipulated under section 38 of the Act have been fulfilled.”

51. In this case, the parties have extensively argued the matter through their various affidavits, which I have already considered. It is my view that despite the same, the applicants have not provided sufficient evidence, nor have they rebutted the evidence provided by the respondent to warrant the arrest and detention of the respondent in civil jail. Further, it’s my view that the issues raised by the applicants cannot be settled through a Notice to Show Cause for committal to civil jail of the respondent.

52. The upshot of my finding is that the notice to show cause lacks merit and is hereby dismissed.

DATED, SIGNED AND DELIVERED THIS 10TH DAY OF NOVEMBER 2023 AT MOMBASA VIA MICROSOFT TEAMSGREGORY MUTAIJUDGEIn the presence of:-Ms. Mulago for the Petitioner/Respondent;Ms. Hamid holding brief for Mr. Hamza for the Applicants; and