[2017] KEHC 884 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

SUCCESSION NO. 206 OF 1989

IN THE MATTER OF THE ESTATE OF OMAR ALI ABDULRAHMAN

ALI OMAR ALI ABDULRAHMAN............................APPLICANT

VERSUS

MOHAMED ALI ABDULRAHMAN.......................RESPONDENT

RULING

1. Omar Ali Abdulrahman “the Deceased” died at Mombasa on 13. 11. 89. The record shows that he left a Will dated 4. 11. 78 in which he appointed his elder brother Mohamed Ali Abdulrahman the executor thereof (“the Respondent”). In his Will, the Deceased declared that he at the time of making his Will had only 2 sons, Ali and Mohamed who were the only heirs entitled to his estate. He further declared that he had divorced their mothers and that they were not entitled to a share in his estate. The Deceased provided that the residue of his estate would be distributed amongst his heirs according to Islamic Sharia. Grant of Probate (“the Grant”) was issued to the Respondent on 25. 5.90 and confirmed on 23. 9.92.

2. By an application dated 2. 10. 92 one Makarim Al Amin an ex-wife of the Respondent sought to have the Grant revoked on the ground that the Will of the Deceased dated 4. 11. 78 had been revoked by a subsequent will dated 16. 4.85, a fact concealed by the Respondent. She claimed that the said subsequent will had named her as an executor together with the Respondent. She was also named as a beneficiary of one of the properties of the estate of the Deceased. The application was opposed by the Respondent who denied knowledge of the purported will. The record shows that on 4. 6.93, the Court ordered by consent of the parties that the subsequent will be submitted to the Criminal Investigations Department for verification of the signature of the Deceased by a handwriting expert. The Court further directed that the application be served upon the beneficiary to whom the property in question had been transferred under the first will. The matter was listed for hearing on 14. 11. 95. It would appear from the record that the application was not heard and nothing more happened in the matter.

3. The next activity on the file was the filing of the present application dated 5. 10. 16 (“the Application”). In the Application, Ali Omar Ali Abdulrahman the Applicant herein seeks the revocation of the Grant. The Application is premised on the following several grounds on the face thereof and in the Applicant’s affidavit sworn on even date:

a) The proceedings to obtain the grant were defective in substance in that though the Applicant as 27 years old, the Respondent did not notify him of the filing of the Petition for the Grant or obtain his consent in respect thereof.

b) The Grant was obtained fraudulently by the concealment from this Court of facts material to the case to wit that the Applicant was 27 years old and hence his consultation was necessary.

c) The Respondent did not obtain the confirmation of the Grant within the time prescribed by law before distribution of the estate to the beneficiaries. According to Court proceedings, no certificate of confirmation of grant was issued in respect of the estate of the Deceased. The Applicant further avers that the Respondent failed to diligently administer the estate and to produce accounts to the Court. He claimed that Plot No. 197/V/MN and motor vehicle KZM 510 were sold without his consultation and the proceeds were paid to persons not part of the estate and were never accounted for.

d) The Applicant avers that though the Will of the Deceased provided for the Applicant and his brother both being children of the Deceased’s divorced 2nd and 4th wives respectively, the Respondent distributed most of the estate to the Deceased’s 5th wife and 5 children at the expense of the Applicant and his aforementioned brother. According to the Applicant, the Respondent failed to follow the wishes of the Deceased and distributed the estate unfairly. The Respondent further obtained advice from an auctioneer valuer who undervalued the property to the advantage of the other beneficiaries.

4. The Respondent opposed the Application by way of a Preliminary Objection dated 28. 10. 16 and a Replying Affidavit of even date. The grounds for the objection are that the properties of the estate have been distributed to rightful heirs and that the Applicant has filed Kadhi Court Case No. 133 of 2016 against the Respondent raising the same issues herein and the matter is pending. In his Replying Affidavit, the Respondent denies concealing anything from the Court as alleged by the Applicant. He averred that the Deceased appointed him executor of his Will. At the time of making his Will in 1978, the Deceased had gone through 2 divorces and had 2 children whom he named in the Will. He subsequently married his 3rd wife and had 5 more children. In his application for the Grant, the Respondent listed all the properties of the estate and also included all 7 children and widow of the Deceased.

5. The Respondent further averred that at the time of the demise of the Deceased, the Applicant was an adult aged 27 years old and by the time the Grant was obtained and confirmed, he was over 30 years old. The Applicant received his fair share of the estate and had he been aggrieved, he ought to have filed an application then. The Applicant seeks to have the Grant revoked over 24 years after distribution. The property belongs to different persons who have moved on with their lives. According to the Respondent, the Applicant has messed up his life and no longer has any of the property he had inherited. He is a disgruntled person and a vexatious litigant. He has even filed Kadhi’s Court Succession Cause No. 133 of 2016 which raises the same issues as regards mode of distribution.

6. I have given due consideration to the Application, the rival affidavits, the preliminary objection as well as the submissions by the parties. The Preliminary Objection in my view raises facts that require to be ascertained through interrogation and enquiry. In Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696,Sir Charles Newbold rendered himself thus:

“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”

7. The law relating to revocation of grants is found in Section 76 of the Law of Succession Act which provides:

“ 76 A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—

(a) that the proceedings to obtain the grant were defective in substance;

(b) that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case.

(c) that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;

(d) that the person to whom the grant was made has failed, after due notice and without reasonable cause either—

(i) to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or

(ii) to proceed diligently with the administration of the estate; or

(iii) to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or

(e) …

8. In order for this Court to decide whether the Grant is liable for revocation or not, the following issues must be determined:

i) Whether the proceedings to obtain the grant were defective in substance;

ii) Whether the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case.

iii) Whether the Respondent failed to have the Grant confirmed within the period stipulated in law before distribution of the estate to the beneficiaries

iv) Whether the Respondent followed the wishes of the Deceased as set out in his Will.

Whether the proceedings to obtain the grant were defective in substance

9. It was submitted for the Applicant that the Respondent neither notified the Applicant of the filing of the Petition for the Grant nor obtained his consent in respect thereof. This failure on the part of the Respondent renders the proceedings defective in substance and therefore a ground for revocation of the Grant. For the Respondent, it was submitted that the issuance and confirmation of the Grant was done in accordance with the law. When the application for grant was published in the Kenya gazette, no objection was raised and the Grant was issued. I have carefully looked at the record. The Petition for Grant of Probate filed on 1. 12. 89 is in the prescribed Form 78. The original Will is annexed to the Petition. The Affidavit in support of the Petition is in the prescribed Form 3. The fact of filing of the Petition was gazetted on 20. 4.90 inviting objections. The record does not show any evidence of any objection filed. Consequently, the Grant was issued on 25. 5.90.

10. On the claim that the Applicant was not notified of the application for grant and that his consent was not obtained, Rule 26 of the Probate and Administration Rules is relevant. The Rule provides:

“26. Grants of letters of administration

(1) Letters of administration shall not be granted to any applicant without notice to every other person entitled in the same degree as or in priority to the applicant.

(2) An application for a grant where the applicant is entitled in a degree equal to or lower than that of any other person shall, in default of renunciation, or written consent in Form 38 or 39, by all persons so entitled in equality or priority, be supported by an affidavit of the applicant and such other evidence as the court may require.”

11. A reading of the Rule indicates that notification and consent of every person entitled in the same degree as or in priority to the applicant only applies to application for grant of letters of administration intestate or with will annexed and not for grant of probate. In the instant case, the application was for a grant of probate. In testate succession it is the executor named in the will of a deceased person who petitions for a grant of representation unlike in intestate succession where any beneficiary in the order of priority provided for in Section 66 of the Law of Succession Act may petition for a grant. In the instant case, the question of consent of every person entitled in the same degree as or in priority to the Respondent does not arise as the Respondent is the duly named executor in the Will of the Deceased. Further, it appears to this Court that the Applicant is more concerned about the distribution of the estate rather than representation.

12. As regards consent to confirmation of the Grant it was submitted that the same was not obtained from the heirs of the Deceased thus denying them an opportunity to make any objection thereto. For the Respondent it was submitted that the properties were distributed to all beneficiaries including the Applicant. He accepted his share and proceeded to dispose of it in its entirety. The relevant Rule regarding consent to confirmation is Rule 40(8) which provides:

“Where no affidavit of protest has been filed the summons and affidavit shall without delay be placed by the registrar before the court by which the grant was issued which may, on receipt of the consent in writing in Form 37 of all dependants or other persons who may be beneficially entitled, allow the application without the attendance of any person; but where an affidavit of protest has been filed or any of the persons beneficially entitled has not consented in writing the court shall order that the matter be set down as soon as may be for directions in chambers on notice in Form 74 to the applicant, the protester and to such other persons as the court thinks fit.”

I have carefully perused the record herein and I am satisfied that the Applicant’s consent in writing in Form 37 was not obtained as required by Rule 40(8) of the Probate and Administration Rules. To this extent, the proceedings to obtain the Grant were defective in substance.

Whether the grant was obtained fraudulently by the making of a false statement or by theconcealment from the court of something material to the case

13. The Applicant contends that the Respondent obtained the Grant fraudulently by the concealment from the Court something material to the case. It is the Applicant’s case that though he was 27 years old the Respondent did not notify him of the filing of the Petition for the Grant or obtain his consent in respect thereof. From the material before me, I am satisfied that the Respondent neither notified the Applicant of the filing of the Petition nor obtained his consent. However, given that the Respondent distributed the estate to all beneficiaries including the Applicant, I am not persuaded that this omission amounts to fraud on the part of the Respondent.

Whether the Respondent failed to have the Grant confirmed within the stipulated period

14. It was submitted that the Respondent failed to have the Grant confirmed within the period stipulated in law. The Grant was issued on 25. 5.90 and confirmed on 23. 9.92. The Law of Succession Act provides that the holder of a grant of representation shall after expiry of 6 months apply for the confirmation thereof. at Section 71 provides:

“After the expiration of a period of six months, or such shorter period as the court may direct under subsection (3), from the date of any grant of representation, the holder thereof shall apply to the court for confirmation of the grant in order to empower the distribution of any capital assets.”

15. Section 73 of the Act law places a duty upon the Court to within one year from the date of any grant of representation, give notice to the holder of the grant to apply for confirmation thereof. For the Applicant to succeed on this ground, he must show that due notice was given to the Respondent under Section 73 of the Act which he has not. The Court is therefore not satisfied that the Grant is liable to be revoked on this ground. In any event, such an application ought to be brought in circumstances where a grant has not been confirmed. In the instant case, the Application has been brought way after the Grant was confirmed, 25 years to be exact.

16. My understanding of the Applicant’s complaint is that the Respondent distributed the estate unfairly and favoured the widow of the Deceased and her children and that is why he now seeks redistribution of the estate. The Respondent’s position on the other hand is that the Applicant received his fair share of the estate and proceeded to dispose of the same and no longer has any of the property he had inherited. The Court notes that the Applicant has not provided details of the alleged unfairness of the distribution. He has not for instance stated what he himself and his brother got and how it compared with what the other beneficiaries got. He has also not denied that he sold his inheritance. It is trite law that he who alleges must prove. I do therefore agree with the Respondent that had the Applicant been aggrieved by the distribution, he ought to have filed an application then and not 27 years later selling his inheritance. After all he was an adult at the time.

Whether the Respondent followed the wishes of the Deceased as set out in his Will

17. The Applicant’s claim is that avers that though the Will of the Deceased provided for the Applicant and his brother, the Respondent distributed most of the estate to the Deceased’s 5th wife and children at the expense of the Applicant and his aforementioned brother. In order to establish whether the Respondent followed the wishes of the Deceased, it is necessary to look at the provisions of the Will. The Will provides:

“I declare that I am a Sunni Muslim of Shaffie Sect and direct that my estate is to be administered according to Muslim Law.

I further declare that presently I have onlytwo sons (1) Ali born in Cairo in 1962 and (2) Mohamed born in Mombasa in 1977are my only two heirs entitled to inherit my estate. I have divorced their mothers and they are not entitled to inherit my estate.”

The Will goes on to direct the Executor to

“…after paying all my lawful debts distribute the residue amongst my heirs according to Sheria”

18. It is not disputed that at the time of his death, the Deceased was survived the applicant and his brother together as well as by a widow and her 5 children. In the Application for confirmation of Grant, the Respondent listed the widow and all 7 children of the Deceased. None was omitted. The wishes of the Deceased as contained in his Will were that his estate be distributed according to Muslim law after payment of all lawful debts. Though the Applicant claims that his father’s wishes were not followed by the Respondent, he has not provided any evidence support his claim. In absence of such evidence, the Court is not persuaded that the wishes of the Deceased in his Will were not followed by the Respondent.

19. The Applicant submitted that the Respondent used a power of attorney from the Deceased to apply for the Grant and that a power of attorney cannot be used to obtain a grant of probate. The Applicant further submitted that the Respondent concealed the existence of some properties including “a flat building at Zanzibar, a flat building at Muscat, Oman and plot number Mombasa/Block XXI/594”. The Applicant argued that the Respondent was secretly colluding with Zulekha Omar Ali Abdulrehman, the widow of the Deceased and that is why by 22. 7.93 she acquired Title No. Mombasa/Block XXX/46 to the exclusion of other beneficiaries except her daughters.

20. The above submissions are not supported by the averments in the Applicant’s pleadings. It is trite law that a party is bound by his pleadings. In like manner, this Court is also bound by the pleadings of the parties and cannot embark on an enquiry into the case before it other than to adjudicate upon the specific matters raised by the Applicant in his pleadings. The Court of Appeal in the case of Dakianga Distributors (K) Ltd v Kenya Seed Company Limited [2015] eKLR, cited with approval the Supreme Court of Malawi in Malawi Railways Limited v Nyasulu [1998] MWSC 3:

“The court itself is as bound by the pleadings of the parties as they are themselves. It is no part of the duty of the court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties. To do so would be to enter upon the realm of speculation.”

In view of the fact that the Applicant did not in his pleadings raise the issues he now submits on, the Court cannot delve into those issues and must confine itself to the specific matter contained in the pleadings of the Applicant. To do otherwise would be to enter upon the realm of speculation.

21. Having given due consideration to the material placed before me, it would appear that the Respondent did not involve the Applicant during the process of obtaining the Grant and the confirmation thereof. Under Rule 40(8) of the Probate and Administration Rules, the consent of all of all dependants or other persons who may be beneficially entitled, is a mandatory requirement at confirmation. I am not persuaded that there was fraud on the part of the Respondent. However there were defects in the process of obtaining the Grant. The Applicant being an adult of 27 years of age was not involved. This would be adequate ground for revoking the grant under Section 76 of the Act. Section 76 however is not couched in mandatory terms. The Court may or may not exercise its discretionary power to revoke a grant where it is demonstrated that there were defects in the process of obtaining the grant. The Grant herein was issued on 25. 5.90, about 27 years ago and confirmed on 23. 9.92, about 25 years ago. Given the age of this matter, I am persuaded not to revoke the Grant. Had the Applicant been excluded as a beneficiary, I would have ordered inclusion. Had he made out a case for unfair distribution, I would have made such orders as would be fit in the circumstances. As it is, the Applicant was included as one of the beneficiaries. He got his share of the estate and has not provided any material that would persuade the Court that the distribution was unfair to him or to his brother.

22. As stated above, the issues raised in the Respondent’s Preliminary Objection that the Application has been overtaken by events as the property has changed hands and that the Applicant has filed another matter in the Kadhi’s Court are not pure points of law. These issues require to be ascertained through interrogation and enquiry. The Preliminary Objection therefore fails the test set out in the Mukisa Biscuit case (supra) as it has raised factual issues and not pure points of law. In the circumstances, the Preliminary Objection is hereby dismissed.

23. In view of the foregoing, this Court finds that the Applicant has not made out a case for the grant of the orders sought herein. The Summons for Revocation of Grant dated 5. 10. 16 lacks merit and the same is hereby dismissed. This being a family matter, each party shall bear own costs.

DATED, SIGNED and DELIVERED in MOMBASA this 6th day of October 2017

_________

M. THANDE

JUDGE

In the presence of: -

………………………for the Applicant

………………………for the Respondent

………………………Court Assistant