[2021] KEHC 9828 (KLR)

In re Estate o f Mohanlal Harakhchand Shah (Deceased) (Succession Cause 6 of 1986) [2021] KEHC 9828 (KLR) (2 September 2021) (Ruling)

Neutral citation: [2021] KEHC 9828 (KLR)

Republic of Kenya

In the High Court at Mombasa

Succession Cause 6 of 1986

JO Nyarangi, J

September 2, 2021

In the matter of

In the Matter of the Estate o f Mohanlal Harakhchand Shah (Deceased)

Applicant

Ruling

1. The deceased herein died testate on December 5, 1985. He left a will executed on September 5, 1975 with one Lilavati Mohanlal Harakchand Shah his wife as the sole executrix. A grant of probate was made and issued to Lilavati, on April 1, 1986. Unfortunately, the executrix died on July 1, 2000 before the grant could be confirmed. As a consequence, the estate has remained un-administered with no executor nor administrator to apply for confirmation of the grant.

2. Subsequently, Ketan Mohanlal Shah and Pallavi Mohanlal Shah son and daughter to the deceased respectively obtained a grant of probate in respect of their deceased mother pursuant to her written will dated January 2, 1986.

3. For purposes of completion of the administration of the estate herein, the said Ketan Mohanlal Shah the surviving son to the deceased moved this court on April 20, 2021 vide summons dated April 19, 2021 seeking orders as follows;(1)The said Ketan Mohanlal Shah be appointed as the administrator with will annexed of the estate of the deceased.(2)That the letters of administration with will annexed and certificate of confirmation of grant reflect distribution of assets remaining un administered as follows, Ketan Mohanlal Shah 72,000 ordinary shares in Kenya General Agencies (MSA) Limited(3)That the costs of this application be costs in the cause.

4. The application is premised upon grounds set out on the face of it and averments contained in the affidavit in support sworn by the applicant on April 19, 2021 in which he averred that his mother the only executrix to the estate having died before confirmation of the grant, there is need to appoint an administrator to complete administration of the estate.

5. I have considered the application and the affidavit in support plus the death certificate of the executrix attached herein. Indeed, the estate has not been administered to completion and therefore the need to appoint an administrator to finish the process.

6. The application herein was brought pursuant to section 64 of the Law of Succession Act which provides;“When a residuary legatee who has a beneficial interest survives the testate, but dies before the estate has been fully administered, his representative shall have the same right to administration with the will annexed as the residuary legatee”

7. According to the will of the deceased, it does not mention any other beneficiary other than his wife as the sole executrix but now deceased. However, the applicant and his sister are executors in respect of the estate of their late mother the deceased executrix in respect of this estate. The applicant being a son of the deceased and the only beneficiary to their mother’s estate has moved this court for a grant of letters of administration with will annexed in place of a grant of probate of written will.

8. Since 1986, this file has been pending. I have no reason not to allow this application so as to fast truck administration of the estate. Accordingly, the application is allowed with orders that;(a)A grant of letters of administration with will annexed do issue to the applicant herein one Mohanlal Harakhchand Shah in place of the grant of probate.(b)That upon grant of the said grant, the administrator to apply for confirmation of the grant.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 2ND DAY OF SEPTEMBER, 2021J N ONYIEGOJUDGE