[2017] KEHC 880 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

FAMILY DIVISION

SUCCESSION CAUSE NO. 103 OF 2012

IN THE MATTER OF THE ESTATE OF OMAR ABDALLA TAIB

HAFSWA OMAR ABDALLA TAIB

NAHIDA OMAR ABDALLA TAIB

HUSSEIN OMAR ABDALLA TAIB.........PETITIONERS

VERSUS

SWALEH ABDALLA TAIB.......................RESPONDENT

RULING

1. Before me for determination is an Application dated 24. 11. 16 in which the Applicants herein seek the following:

“1. THAT the time for filling (sic) this application be extended.

2. THAT HASSAN SWALEH TAIB the legal representative of the Respondent who is deceased be made a party to the Appeal.

3. THAT costs of this application be in the cause.”

2. The Application is premised on the grounds that the Respondent died on 6. 5.15 and an application for limited grant was filed on 3. 6.15 which grant is yet to be issued. The Applicants contend that the legal representative Hassan Swaleh Taib (the proposed substitute) has deliberately delayed the gazettement of the grant despite the Deputy Registrar having issued a notice of filing of the petition on 4. 2.16. The 3rd Applicant avers in his affidavit sworn on 24. 11. 16 that as a result of this delay, he was forced to pay for the gazettement. He states that delay in making this application was occasioned by delay on the part of the estate of the Respondent in taking out letters of administration; that it was not until 25. 10. 16 that Mr. Mutisya, advocate informed them that the application for grant had been made though not gazetted. An application for leave to appeal is pending before this Court and the same cannot proceed without substitution of the Respondent. It is in the interest of justice that time for making the application is extended and the legal representative is allowed to take the place of the deceased Respondent herein.

3. By his grounds of objection dated 19. 4.17, the proposed substitute opposes the Application on the ground that the grant of letters of administration is yet to be finalized and hence the Application is premature, incompetent and bad in law and should be struck out with costs.

4. In their submissions, the Applicants argue that the Respondent died on 6. 5.15. This information was concealed from the Applicants and no death certificate was availed to Court until the same was annexed to the Respondent’s submissions in respect of the application dated 19. 3.15. It was asserted that the proposed substitute applied for a grant of representation as early as 28. 5.15. The application was made in the Chief Magistrates Court with the sole intention of frustrating the Applicants and to ensure that this Court would not have track of it. This explains the delay herein which in the Applicants’ view is not inordinate. It was further argued that under Order 24 of the Civil Procedure Rules, the Court has powers to extend time for filing the application. The grant was issued to the proposed substitute on 10. 7.17 by the Chief Magistrate’s Court.

5. The Applicants have further submitted that the application is not incompetent or premature as the proposed substitute had already applied for a grant. It was further submitted that the wording in Rule 14 of the 5th Schedule are wide enough to cover a pending appeal. The Court was urged to allow the Application.

6. For the proposed substitute, it was submitted that the application is premature, incompetent and bad in law as it sought to enjoin the proposed substitute before issuance of the grant. The Application was filed on 24. 11. 16 while the grant was issued on 10. 7.17. It was further argued that the suit has abated given that the deceased Respondent died 6. 5.15 and substitution should have been done by 6. 5.16. The Court was urged to strike out the application with costs.

7. The record shows that matter herein relates to the estate of Omar Abdalla Taib, the deceased who died on 11. 2.12. He was survived by 3 children, the Applicants. The estate of the deceased comprised of inter alia 50% shares in an enterprise known as Mombasa Cargo Tally Organization. The other 50% was owned by the Respondent a brother to the deceased. Upon the demise of the deceased, a dispute arose between the Applicants and their uncle the Respondent on the management of the said business. The Applicants filed an application in this Court seeking injunctive and other orders against the Respondent which culminated in a consent order dated 28. 8.13. In the said consent the Respondent was to buy out the estate of the deceased from the business for the sum of Kshs. 6,349,471. 00. The matter was to be mentioned on 18. 10. 13 for the purpose of recording a consent on the goodwill of the business. It would appear that no consent on goodwill was forthcoming and on 11. 12. 13 the Court directed parties to file submissions regarding the same. In a judgement on 9. 6.14, the Court found that the existence of goodwill had not been proved and further that the value of such goodwill if any is not ascertainable. For the said reason, the prayer for goodwill was disallowed.

8. The Applicants being aggrieved by the decision of this Court filed Civil Appeal No. 22 of 2014 in the Court of Appeal. On 12. 3.15 however, the appeal was struck out for want of leave to file the same. Undeterred, the Applicants filed an application in this Court on 24. 3.15 seeking the requisite leave to file the appeal in the Court of Appeal. While the appeal was pending, the Respondent died, necessitating the present application.

9. I have considered the Application and submissions by Counsel. The Applicants have invoked the provisions of Order 24 of the Civil procedure Rules under which they have filed the Application. This however is a succession matter governed by the Law of Succession Act. Rule 63 of the Probate and Administration Rules provides:

“Save as is in the Act or in these Rules otherwise provided, and subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provisions of the Civil Procedure Rules, namely Orders V, X, XI, XV, XVIII, XXV, XLIV and XLIX (Cap. 21, Sub. Leg.), together with the High Court (Practice and Procedure) Rules (Cap. 8, Sub. Leg.), shall apply so far as relevant to proceedings under these Rules.”

10. Order 24 is not one of the provisions of the Civil Procedure Rules imported into the Law of Succession Act by virtue of the above provision. Order 24 makes provision for substituting a party to a suit who dies during the pendency of the suit. Indeed the Law of Succession Act has its very own provisions for substitution of a deceased party. Paragraph 14 of the Fifth Schedule provides:

“When it is necessary that the representative of a deceased person be made a party to a pending suit, and the executor or person entitled to administration is unable or unwilling to act, letters of administration may be granted to the nominee of a party in such suit, limited for the purpose of representing the deceased in the said suit, or in any other cause or suit which may be commenced in the same or in any other court between the parties, or any other parties, touching the matters at issue in the cause or suit, and until a final decree shall be made therein, and carried into complete execution.”

11. Although the foregoing provision was alluded to in the Applicants’ submissions, the same was not invoked. Upon the death of the Respondent, the correct course of action available to the Applicants was to petition for a limited grant of representation for the estate of the Respondent and nominate the proposed substitute for the purpose of representing the deceased in the suit herein. Further even if assuming the application were properly before the Court it would still have run into headwinds as no personal representative of the estate of the deceased Respondent had been appointed by the Court thus making the application incompetent.

12. The Respondent argues that the suit herein has abated. The legal concept of abatement of suits is provided for in Order 24 of the Civil Procedure Rules. As stated above, Order 24 is not applicable in succession matters. Indeed the Law of Succession Act does not envisage abatement of succession matters. In this regard I disagree with the submission by the Respondent.

13. In an effort to explain the delay in filing the present application, the Applicants state that the fact of the death of the Respondent was concealed from them. The record shows that the Respondent died on 6. 5.15. The Applicants had filed an application against the Respondent on 24. 3.15 less than 2 months before his demise. The Respondent was their uncle who lived in Old Town Mombasa, and died at Mombasa Hospital. The record further shows that the Applicants are also resident in Mombasa. It is therefore inconceivable that the Applicants were not aware of the demise of their uncle and only became aware when the death certificate was filed in Court. The reasons advanced for the delay in filing this Application are wanting. However, as stated above, abatement as a legal concept is unknown in succession matters. The issue of extension of time does not therefore arise.

14. For the foregoing reasons, this Court finds that the Application dated 24. 11. 16 is incompetent and the same is hereby struck out. Each party shall bear own costs.

DATED, SIGNED and DELIVERED in MOMBASA this 1st day of December 2017

_____________________

M. THANDE

JUDGE

In the presence of: -

..............................................for the Applicants

...........................................for the Respondent

................................................Court Assistant