[2022] KEHC 517 (KLR)

In re Estate of Vinubhai Virpal Shah (Deceased) (Succession Cause E1035 of 2021) [2022] KEHC 517 (KLR) (Family) (6 May 2022) (Ruling)

Neutral citation: [2022] KEHC 517 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause E1035 of 2021

MA Odero, J

May 6, 2022

IN THE MATTER OF THE ESTATE OF VINUBHAI VIRPAL SHAH (DECEASED) AND IN THE MATTER OF A PETITION FOR LETTERS OF ADMINISTRATION AD LITEM TO A NOMINEE

Between

Ezekiel Kariuki

Petitioner

and

Ketan Kumar Vinubhai Karania

Respondent

Ruling

1. Before this Court is a Petition Notice of Motion dated 21st May 2021 seeking for letters of Administration to a Nominee filed Ezekiel Kamau Kariuki (hereinafter ‘the Petitioner’). By this Petition the Petitioner seeks to have one Ketan Shah nominated for purposes of substituting the Deceased Vinughai Virpal Shah alias V V Shah in a Civil Suit being Nairobi ELCNo. 1213 of 2013. The Petition was supported by the Affidavit of even date sworn by Victoria Wambua Advocate.

2. The Respondent (proposed Nominee) opposed the Petition through his Replying Affidavit dated 24th September 2021 and further Affidavit dated 11th November 2021. The petition was canvassed by way of written submissions. The petitioner filed the written submissions dated 16th December 2021 whilst the Respondent relied upon his written submissions dated 1st December 2021.

Background 3. The Deceased herein Vinughai Virpal Shah alias V V Shah is said to have passed away on 20th October 2021. His body was cremated shortly thereafter. To date no person has filed a Petition to obtain Grant of letters of Administration in respect of the estate of the Deceased.

4. The Petitioner Ezekiel Kariuki states that he is one of the liquidators of Ndumberi Farmers Co. Ltd It is averred that there exists a pending suit Nairobi ELC No. 1213 of 2013 by Ezekiel Kamau Kariuki and 3 others all suing as the Liquidators of Ndumberi Farmers Co. Ltd (In voluntary liquidation since 1993 v Vinughai Virpal Shah, Settlement Fund Trustees and the Registrar of Titles. The Deceased who was the 1st Defendant in the said suit unfortunately passed away during the pendency of the suit.

5. The Petitioner states that the suit has now stalled due to the failure and/or refusal of the Respondent who is a son of the Deceased to take out letters of Administration. The petitioner seeks to have a Grant of letters of Administration Ad Litemissued to the Respondent in order to facilitate substitution of the 1st Defendant in the suit. The petitioner is apprehensive that the suit may abate if said substitution is not done within one (1) year of the demise of the deceased.

6. In the Further Affidavit dated 18th August 2021 Ms Victoria Wambua Advocate avers that she practices in the law firm of J.M. Njenga & Co. Advocates who represent the Plaintiff liquidators in Nairobi ELC No. 1213 of 2013.

7. The said Ms Wambua avers that during the hearing of said suit on 16th November 2020 counsel for the Deceased informed the court that his client had passed away on 20th October 2020 and that his body had been cremated at Kariokor Crematorium in Nairobi.

8. That despite representations having been made regarding substitution of the Deceased, the Respondent has been evasive on the issue of obtaining a Grant Ad litem to facilitate substitution of the Deceased. She states that there is need to have the Deceased substituted before the suit abates.

9. The Respondent filed a Replying Affidavit dated 24th September 2021 as well as a Further Affidavit dated 11th November 2021. The Respondent confirms that he is a son to the Deceased and further confirms that the Deceased died on 20th October 2021 and was cremated on 21st October 2021.

10. The Respondent states that he has not bothered to take out letters of Administration in respect of the estate of the Deceased because the Deceased did not have any property at the time of his death. The Respondent argues that the Petitioners name does not appear in the register of shareholders of Ndumberi Farmers Co. Ltd and that he therefore lacks ‘locus standi’ to prosecute this petition. The Respondent further avers that all the documents produced by the Petitioner to prove his membership in the company are forgeries. He urges the court to dismiss this Petition in its entirety.

Analysis and Determination 11. I have carefully considered this Petition, the affidavit in Reply as well as the written submissions filed by both parties.

12. The Respondent has submitted that the Petitioner has nolocus standiin this matter. The term ‘locus standi’ is a Latin term, which literally means place of standing and refers to the right of a party to be heard in a particular suit.

13. Undoubtedly the question of ‘locus standi’ is a crucial matter upon which a suit will stand or fall. In Julian Adoyo Ongunga v Francis Kiberenge Abano[2015]eKLR, the Court in considering the question of ‘locus standi’ observed as follows:-“Further the issue of locus standiis so cardinal in a civil matter since it runs through to the heart of the case. Simply put, a party without locus standi in a civil suit lacks the right to institute and/or maintain that suit even where a valid cause of action subsists. Locus standi relates mainly to the legal capacity of a party. The impact of a party in a suit without locus standi can be equated to that of a court acting without jurisdiction since it all amounts to null and void proceedings. It is also worth-noting that the issue of locus standi becomes such a serious one where the matter involves the estate of a deceased person since in most cases the estate involves several other beneficiaries or interested parties”.

14. The Respondent has claimed that the Petitioner lacks locus standias he is not a representative of the liquidators (Plaintiffs) in the ELC Suit. It is not for this court to delve into the question of the validity or other wise of the Petitioners documents. There are questions which in my view ought to be raised in the ELC suit. The Respondent has not denied this existence of Nairobi ELC No. 1213 of 2013. The best option available to the Respondent is to take up letters of ad litem and make those representations in the ELCcourt.

15. Paragraph 14 of the 5th Schedule of the Law of Succession Act Cap 160 Laws of Kenya provides as follows: -“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”.

16. The Respondent has confirmed that he is a son of the Deceased. He has also confirmed that the Deceased passed away on 20th October 2020. Under the terms of the Law of Succession Act, the Respondent is one of the persons entitled to take up letters of Administration. Despite being fully aware of the pending suit involving the Deceased, the Respondent has flatly refused to take up letters of Administration.

17. The Respondent argues that he has no need to take up letters of Administration because the Deceased had no property. This is a lame excuse and is not persuasive at all. It is manifestly clear that the aim and purpose of the Respondents refusal to take up letters of Administration is to stall the ELC case and to ensure that the suit eventually abates, thereby frustrating the Plaintiffs suit.

18. Rule 14 of the Fifth Schedule exists and is meant to offer redress to parties who find themselves in precisely the kind of predicament, the Petitioner is in.

19. The Respondent in his submissions has basically attempted to argue the demerits of the civil suit before this Probate Court. This is not the proper forum for him to do so. The suit is being head in the ELC court not in this court.

20. In the Re Estate of Musa Kipcholio Chepson (Deceased) [2017] eKLR, the court held that Rule 14 does not require the Probate court to enquire into the validity of a suit before nominating a representative of the estate of a deceased. All the Probate court needs to do is to satisfy itself that there is a pending suit to which the Deceased was a party and that the person entitled to take out letters of Administration has been reluctant or is unwilling to do so.

21. The Respondent is a son of the Deceased. He is in the category of persons who are entitled to apply for Grant of representation to the estate of the Deceased. He has declined to do so. I have perused Nairobi ELC No. 1213 of 2013 and I note that the matter is still live and pending.

22. I therefore find that this Petition has merit. Accordingly I allow the Petition and direct that Grant of letters of Administration Ad litem in respect of the estate of Vinubhai Virpal Shahalias V V Shahshall be made to Ketan Shahlimited only for purposes of substituting the Deceased in Nairobi ELC No. 1213 of 2013. Costs of this application will be borne by the Respondent.

DATED IN NAIROBI THIS 6TH DAY OF MAY 2022. MAUREEN A. ODEROJUDGE