[2022] KEHC 9997 (KLR)

In re Estate of Mohamed Niaz Jamil (Deceased) (Succession Cause E1011 of 2020) [2022] KEHC 9997 (KLR) (Family) (9 May 2022) (Ruling)

Neutral citation: [2022] KEHC 9997 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause E1011 of 2020

AO Muchelule, J

May 9, 2022

IN THE MATTER OF THE ESTATE OF MOHAMED NIAZ JAMIL ALIAS MOHAMED JAMIL MUGHAL (DECEASED)

Between

Shali Mohamed

Applicant

and

Hyekal Mughal

Respondent

Ruling

1. The deceased Mohamed Niaz Jamil alias Mohamed Jamil Mughal died on 18th February 2020. He left a written Will dated 14th October 2015 in which he appointed his wife Shali Mohamed (the applicant) and an advocate Donald Odhiambo Owang to be trustees of the Will. He made bequests to the applicant, his children, his nieces and to the mosque Dawat-E-Islam. No grant of probate has so far been issued, and the petition for limited grant ad colligenda bona filed by the applicant seeking the collection and preservation of the estate was opposed and is yet to be heard and determined.

2. By application dated 1st December 2022, the applicant sought under section 47 of the Law of Succession Act (Cap. 160) and rule 59 of the Probate and Administration Rules that the court sanctions the release from the deceased’s Habib Bank Account No. xxxx, Industrial Area Branch, or from the deceased’s other bank accounts, funds for her general upkeep and settlement of the estate’s urgent bills and outstanding liabilities. In the alternative, she asked that the court permits her to be getting Kshs.100,000/= monthly for her upkeep from the rental income generated from LR No. 209/3596 and LR No. 209/3597. Thirdly, she asked the court to sanction her and her fellow trustee to open a joint account into which estate collections and court authorised payments shall be made, and to order that the rental income from the two properties to be deposited into the joint account.

3. In the supporting affidavit by the applicant she stated that the deceased was the breadwinner on whom she depended for her daily upkeep and maintenance. The deceased was able to take care of the family from the rental income of Kshs.164,000/= from LR No. 209/3596 and LR No. 209/3597 and the income from his Sunset Restaurant. Upon his death she moved to go and stay with her brother who now supports her. This was because the restaurant she was left to run was not doing well, the tenants in LR No. 209/3596 and LR No. 209/3597 had defied paying rent, the deceased’s children had evicted the tenant staying in the main residential house in LR No. 209/3597 who had accumulated Kshs.200,000/= of 4 months of unpaid rent. She further stated that even if she collected rent she would not be able to spend it without a court order. She stated that the estate had outstanding bills amounting to Kshs.2,184,186, which included medical bills incurred by the deceased of Kshs.660,230/=, her medical bills of Kshs.37,700/=, lawyers’ fees of Kshs.1,110,000/=, land rates of Kshs.112,730/= and bills by the restaurant of Kshs.263,521. She sought Kshs.100,000/= monthly for her upkeep. She sought the money from the Habib Bank account because it was the only non-fixed account they were depending on before the deceased died. The application was supported by her co-trustee. She got her physician Dr. Romeo Soares to stated that she was his patient for several years and was being treated for hypertension, bronchitis, depression and malnutrition, and she had unpaid bill of Kshs.95,000/=.

4. The application was opposed by Hyekal Mughal (the respondent) who was a son of the deceased. His case was that the deceased’s Will left trustees but did not appoint executors. His case was that the applicant was living with her sister in Pangani by the time of the death of the deceased. The applicant had been left to operate the restaurant which she does even now and uses the proceeds. He denied that it was not doing well and asked why she did not annex its records of accounts. He denied that any rent came from LR No. 209/3597, LR No. 209/3596, or from LR No. 606845/57. He referred to the Will which had not provided for her in respect of LR No. 209/3597, and added that her entitlement to LR No. 209/3596 would only come at the distribution of the estate. He stated that the applicant had failed to disclose that she had collected rent from August 2020 from LR No. 209/3597 and LR No. 209/3596 and subsequently got their uncle Mohamed Zulafkar Niaz to operate half of LR No. 209/3597 and to retain the rent. His further case was that the bank accounts in the application were not mentioned in the Will and can therefore only be the subject of intestate succession. He denied that the deceased had left any outstanding medical bills. Regarding the legal fees in respect of Donald Ojwang, he swore that the advocate was being engaged by the applicant in her personal matters which did not relate to the estate. Further, now that the advocate was named in the Will as a trustee it would be a conflict of interest for him to act for the applicant in this cause. If the applicant was in need of upkeep or was unwell, she had proceeds from the restaurant to cater for the same, he said.

5. The applicant swore a further affidavit to state that the restaurant had been affected by covid-19 pandemic and that all income derived from it goes to cater only for overheads. She was willing to provide audited accounts from the business. She stated that although there was no trust created following the Will, the intention of the deceased was that the trustees do implement its terms. She stated that she was a beneficiary and therefore had capacity to collect and preserve the estate of the deceased. She further stated that the deceased’s accounts were frozen following his death, and therefore there was need to create a separate account to collect the rental income. Her case was that all the property of the deceased formed part of the estate and needed to be collected and preserved until it was time to distribute them. Lastly, she stated that the advocates were representing the estate in three different matters and were also acting for her in this cause and their fees was a liability to the estate.

6. It is important to point out that the applicant’s application to collect and preserve the estate is pending hearing. It is opposed. Secondly, the Will of the deceased makes no reference to Habib Bank account, which would mean that the property in the account may be the subject of intestate succession.

7. Thirdly, the Will appointed trustees and not executors. Where a Will appoints an executor, he is the one who will petition the court for the grant of probate and he will be the one who will ultimately distribute the estate of the deceased to the named beneficiaries. Where the Will has not named an executor, under sections 63, 64 and 65 of the Act any beneficiary under the Will can petition the court for the grant of letters of administration with Will attached (In Re Estate of Macharia Ndirangu (Deceased) [2013]eKLR).

8. The applicant stated that she requires funds for her upkeep and medical treatment, for the payment to lawyers and for other needs. It is admitted by her that since the deceased’s death she has been operating the restaurant alone and benefitting from the proceeds. She stated that Covid-19 pandemic has affected her profits; that what she now gets is only enough to cover overheads. She has not provided any credible audited accounts of this business facility. She undertook the operation of this facility without any order of the court. She, in short, intermeddled with the estate of the deceased to that extent.

9. Further, she had no authority to unilaterally instruct lawyers to act for her and the estate and seek to commit the funds of the estate in paying them. She stated that her current advocates are representing the estate in three different matters and for that they require a deposit in legal fees. Which are these matters, and how do they relate to the estate? She is not an executor of the estate of the deceased. Her present position is that of an ordinary beneficiary, and in that position she cannot commit the estate, or commit the other beneficiaries.

10. In conclusion, the journey towards the resolution of the dispute relating to the estate of the deceased should begin by the applicant, or any named beneficiary in the Will, petitioning the court for the grant of letters of administration with written Will. Let it be advertised as required under section 67 of the Act, any objections dealt with, and ultimately the grant issued. The administrator will then distribute the estate in accordance with the Will.

11. In the meantime, this application is dismissed. Because this is a family dispute, each party shall pay own costs.

DATED AND DELIVERED AT NAIROBI THIS 9TH DAY OF MAY 2022. A.O. MUCHELULEJUDGE