[2023] KEHC 27342 (KLR)

In re Estate of Yapindet Malambu (Deceased) (Succession Cause E024 of 2021) [2023] KEHC 27342 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 27342 (KLR)

Republic of Kenya

In the High Court at Kajiado

Succession Cause E024 of 2021

SN Mutuku, J

December 14, 2023

Between

Hassan Kassim Malambu

1st Applicant

Pipi Yapindet Lekishon

2nd Applicant

Nodia Muthoni Kairo

3rd Applicant

Ali Kolela Montet

4th Applicant

Betty Montet (Representing George Montet-Deceased

5th Applicant

Fatuma Omar (Representing Omar Montet-Deceased

6th Applicant

Sophia Hassan Montet (Rep Hassan Montet - Deceased

7th Applicant

and

Mariam Wangare Kassim

1st Respondent

National Land Commission

2nd Respondent

Kenya Railways Corporation

3rd Respondent

Ruling

Background 1. The grant of letters of administration in respect of the estate of Yapindet Malambu, deceased, was issued by the lower court in CM Succession Cause No. 20 of 2017 to Mariam Wangare Kassim, the 1st Respondent and Hassan Iddi Malambu.

2. That grant was revoked by the High Court (Mwita, J) through a Ruling delivered on 28th July 2020 for reasons that it had been obtained fraudulently and by material non-disclosure. The court issued a fresh grant of letters of administration intestate to Hassan Kassim Malambu, 1st Applicant; Pipi Yapindet Lekishon, 2nd Applicant; Hassan Iddi Malambu and Mohammed Koitikash Malambu and directed them to file Summons for confirmation of the grant.

3. The court further ordered that “Any compensation money held by National Land Commission be held by the Commission until the final determination of this matter”.

4. The record of the court shows that the Applicants had filed Misc. Application No. 34 of 2019 in respect of this estate, a Chamber Summons dated 18th April 2019, seeking under prayer 2 of that application, an interim injunction restraining Mariam Wangare Kassim from receiving any monies payable from the National Land Commission in respect of parcel No. Ngong/Ngong/347 or any other property of the deceased’s estate as compensation for the use of the said land in whatever manner.

5. On 7th May 2019, the court granted that prayer as follows: “In the meantime, prayer 2 of the Summons is hereby granted to apply to Ngong/Ngong/347 until final determination of this matter or as the court may direct.”

6. It is that order that has given rise to Chamber Summons dated 1st October 2021, the subject of this Ruling, together with a Notice of Preliminary Objection dated 28th February 2022.

Chamber Summons 7. The Applicants herein filed this Chamber Summons under Section 45 and 46 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules seeking the following reliefs:i.That this honourable court be pleased to certify that this application is urgent and that the same be heard ex-parte and a date for interpartes hearing granted ex-parte.ii.That this honourable court do find that the Respondents are in contempt of the court order issued on the 9th day of May 2019 and given on 7th day of May 2019 by this honourable court and served upon the Respondents.iii.That this honourable court be pleased to order the National Land Commission Chairman, Mr. Gershom Otachi, the Chief Executive Officer, Thabare Tache Arero, the Managing Director, Kenya Railways Corporation, Mr. Philip Mainga and Chief Accounting Officer and Managing Director, Kenya Railways Corporation be committed to civil jail for contempt and disobedience of the order issued and served upon them on 10th day of May 2019. iv.That this honourable court be pleased to order that the 1st Respondent Ms Mariam Wangare Kassim be committed to civil jail for contempt and disobedient of the court order issued on the 7th May 2019. v.That this honourable court be pleased to order the National Land Commission Chairman and its Chief Accounting Officer, the Managing Director, Kenya Railways Corporation and its Accounting Officer and Mariam Wangare Kassim to rectitude the sum of Kshs 80,644,348. 00 together with interest to the benefit of the estate and beneficiaries of the deceased.vi.That this honourable court be pleased to order that the National Land Commission Chairman, Chief Executive Officer, the Managing Director Kenya Railways Corporation, Chief Accounting Officer, Kenya Railways Corporation and Mariam Wangare Kassim not be heard until they have purged the contempt.vii.That this honourable court be pleased to issue such other or further orders in respect of the said contempt as may be necessary for the fair administration of justice.viii.That the contemnors to pay costs of the application in person.

8. The grounds in support of the Chamber Summons are found on the face of it and in the Supporting Affidavit of one Dr. Ali Kolela Montet. Central to the grounds in support of the application is that this court issued an order restraining the Respondents from making payments in respect of compensation in respect of L.R No. Ngong/Ngong/347 forming part of the estate of the deceased, which order was served on the Respondents together with the Penal Notice but the Respondents have ignored the said order and proceeded to pay the money to the t Respondent who has spent it.

9. It is further stated that the National Land Commission has continued to intermeddle with the estate of the deceased by advertising through Kenya Gazette that the 1st Respondent and her children are the heirs of the estate of the deceased despite clear court order to the contrary.

10. The Supporting Affidavit is sworn by one Dr. Ali Kolelo who has described himself as the brother to Pipi Yapindet. The deponent has explained the reasons why he is the one who swore the affidavit and not any of the administrators of the estate. He has deposed that Hassan Kassim Malambu and Hassan Iddi Malambu are deceased while Pipi is ill and frail and unable to swear the affidavit and that the remaining administrator Mohammed Koitikash Malambu is uncooperative.

11. He has deposed that the order of the court restraining payment of the money in respect of the estate was served on the Respondents but despite that and before the Grant was confirmed, the National Land Commissioner paid Kshs 80,644,348. 00 to the 1st Respondent without the court’s authority and in blatant disregard to the existing court order.

12. The deponent has stated that he has the authority of the other beneficiaries of the estate to swear the affidavit. He has attached copy of a consent marked ‘DAKM2’ to that effect.

13. The Chamber Summons is opposed by the 3rd Respondent through a Replying Affidavit of Philip J. Mainga, the Managing Director of the 3rd Respondent. The 3rd Respondent has also raised a Notice of Preliminary Objection (PO).

14. The 3rd Respondent has stated that the order issued by the court on 9th May 2019 bars Mariam Wangare Kassim from receiving any monies payable from the National Lands Commission in respect of parcel number Ngong/Ngong/347 till the final determination of the matter and not the 3rd Respondent; that the said order was sought through the application for injunction dated 18th April 2019 to which application the 3rd Respondent was not a party and that the said order was never directed at the 3rd Respondent.

15. It is stated that contempt of court proceedings cannot be commenced against a party which was not sued or where no order has been made against it or directed to it and therefore the 3rd Respondent is unlawfully, improperly and un procedurally joined in the contempt of court proceedings as the order of 9th May 2019 did not require the 3rd Respondent to do anything and therefore it cannot be said that the 3rd Respondent disobeyed or acted against an order which was not directed at it.

16. It is the case for the 3rd Respondent that it is only the 2nd Respondent which has statutory mandate under the Land Act, National Land Commission Act and Land (Assessment of Just Compensation) Rules, 2017 to award compensation for compulsory acquisition of land; that the Applicants did not effect personal service to the deponent; that the Applicants did not join the 3rd Respondent to any of the proceedings; that the 3rd Respondent has not been served with any of the proceedings and therefore the prayer to commit the Managing Director of the 3rd Respondent to civil jail for 6 months for disobeying court orders which he has no ability to comply with is unjust and unprocedural. It is sought that the 3rd Respondent be struck out from the suit and the orders seeking to commit the Managing Director to civil jail be dismissed forthwith.

17. The 3rd Respondent filed a PO on the following grounds:i.That the current application has been filed contrary to provisions of sections 54 and 82 (a) of the Law of Succession Act, Cat 160 Laws of Kenya.ii.That Dr. Ali Kolela Montet, the deponent of the Supporting Affidavit dated 1st October 2021 lacks locus standi to continue proceedings on behalf of the estate of the deceased without being appointed as an administrator.iii.That the present application is hopelessly incompetent, fatally defective, and inadmissible and the same ought to be dismissed forthwith.iv.That the continued pendency of the present application is an abuse of the court process and the same should be struck out with costs.

18. This court directed that the Notice of Preliminary Objection and the Chamber Summons be canvassed together through written submissions. On record are submissions of the 4th Applicant and the 3rd Respondent. The other Respondent did not participate in these proceedings despite service of the application.

Applicants’ Submissions 19. The 4th Applicant’s submissions are dated 5th July 2022. He has raised three issues for determination, namely:i.Whether the 3rd Respondent was served with the orders.ii.Whether the Respondents are guilty of contempt of court.iii.Whether Dr. Ali Montet has locus standi to continue proceedings on behalf of the estate.

20. On the first issue, they submitted that contrary to what has been alleged by the 3rd Respondent in their affidavit, they did indeed effect service through a letter addressed to the 3rd Respondent’s Managing Director dated 24th May, 2021 and physically received on the same date and by email to the Managing Director on 27th May, 2021 via email address md@krc.co.ke. It is their case therefore that the 3rd Respondent was aware of the existence of the order.

21. On the second issue they submitted that the Respondents are held in contempt of the order dated 7th May, 2019 and that the Court issued a permanent order in its ruling dated 28th July, 2020. They relied on the Contempt of Court Act No. 46 of 2016 under Section 4(1)(a) of the act which defines civil contempt as1)Contempt of court includes(a)civil contempt which means willful disobedience of any judgment, decree, direction, order, or other process of a court or willful breach of an undertaking given to a court;

22. They submitted that section 3 of the said Act states the purpose of contempt proceedings is to:(a)uphold the dignity and authority of the court;(b)ensure compliance with the directions of court;(c)ensure the observance and respect of due process of law;(d)preserve an effective and impartial system of justice; and(e)maintain public confidence in the administration of justice as administered by court.

23. It was their case that the 1st Respondent herein was in contempt of court by disregarding the orders of 7th May, 2019 by proceeding to stake claim for sums relating to the suit property and receiving the money from the 2nd Respondent herein. It is their case that they also served the order to the 2nd Respondent on 10th May, 2019 but still disbursed the money to the 1st Respondent in total disregard of the order.

24. They submitted that the 2nd and 3rd Respondents failed to follow the procedure set out in the Land Act under sections 111(1), 112(1) (2)(3) (6) and acted with undue regard to the process. It was their case that the 1st Respondent had no locus to act for the estate as she did not have any valid Grant of representation and there were court orders preventing her from dealing with the estate.

25. On the 3rd issue they submitted that though it is alleged that Dr. Ali Montet does not have locus standi the same cannot be further from the truth. It was his case that section 66 as read together with sections 82, 29 and 39 of the Law of Succession Act provides that:When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference –(a)surviving spouse or spouses, with or without association of other beneficiaries;(b)other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;

26. It was submitted that the original administrators being Hassan Kassim Malambu and Hassan Iddi Malambu are deceased, while Pipi Yapindet Lekishon is ill and incompetent to conduct any proceedings. That the remaining administrator has been un co-operative; that the estates of the above-mentioned persons have all consented to the deponent being their representative for purpose of filing this Application; that the deponent is acting in his capacity as the representative of the estate of Hassan Iddi Malambu who was one of the administrators as is therefore within his right and that they have demonstrated that the Respondents were in contempt of court and the Court should allow the application.

3rd Respondents Submissions 27. The 3rd Respondent’s submissions are dated 21st September, 2022. They address the Preliminary Objection and the Chamber Summons and raise the following issues for determination:a.Whether the Applicant herein, being the Deponent of the Supporting Affidavit, has a locus standi to commence proceedings without grants of letters of administration?b.Whether the 3rd Respondent has powers to pay any compensation under the Law?c.Whether the 3rd Respondent’s Managing Director can be held in contempt of Court?d.Whether a party can introduce new facts at the submission stage?

28. On the preliminary objection it was submitted that the Deponent to the supporting affidavit does not have locus standi to institute legal proceedings on behalf of the estate without the necessary letters of administration and cited Alfred Njau -vs- City Council of Nairobi (1983)eKLR where the court stated that:“The term locus standi means the right to appear in court and conversely, as is stated in Jowitt’s Dictionary of English Law, to say that a person has no locus standi means that he has no right to appear or be heard in such a proceeding.”

29. It was submitted that the test for locus standi was set out in the case of Law Society of Kenya -vs- Commissioner of Lands & 2 others (2001) eKLR where the court held that:“For a party to have locus standi before a court of law such a party must demonstrate a sufficiency of interest to sustain its standing to sue in court.”

30. It was submitted that in succession matters it is trite law that a party in a succession cause, even if entitled to administer the estate, cannot act in any proceedings representing the estate before letters of administration are granted and confirmed by court and cited Rajesh Pranjivan -vs- Sailesh Pranjivan Chudasama (2014) where the court of appeal held that:“……….a litigant is clothed with locus standi upon obtaining a limited or full letter of administration in case of intestate succession….”

31. The 3rd Respondent submitted, further, that the deponent to the supporting affidavit explained the reasons why he swore the affidavit despite being devoid of the capacity to do so, that two of the administrators Hassan Kassim Malambu and Hassan Iddi Malambu are deceased and that Pipi Yapindet Lekishon, the remaining other administrator is seriously ill. It is submitted that the allegation that Pipi Yapindent Lekishop is incompetent to swear the affidavit was not for him to determine as was observed in In re Estate of Mugambi Kobia Alias M Mugambi Kobia (2017) eKLR that:“Therefore, in litigious succession proceedings, where a necessary party is suffering from some deficiency or impediment which makes such party to be incapable of protecting his interest in the cause, the court has power to appoint a person to represent such party. Accordingly, where a protestor is said to be of unsound mind, the court will have to interrogate the issues raised and if it finds him to be of unsound mind to an extent as to be incapable of protecting his interest in the proceeding, the court will appoint a person to represent him for purposes of prosecuting his protest.”

32. On the issue that the remaining administrator, Mohammed Koitikash Malambu is un co-operative, it was submitted that it is trite law that he who alleges must proof as per section 107 of the Evidence Act. That nothing has been brought before this Court to show that the two administrators are deceased.

33. It was his case that the Applicant did not comply with Rule 73 of the Probate and Administration Rules, in following the procedure for substitution of an administrator. That the Applicant should have done this before representing the estate without any capacity to do so.

34. The 3rd Respondent relied on re Estate of Chemwok Chemitei (Deceased)[2021] where the court stated that:“A grant of representation is made in personam. It is specific to the person appointed. It is not transferable to another person. It cannot therefore be transferred from one person to another. The issue of substitution of an administrator with another person should not arise. Where the holder of a grant dies, the grant made to him becomes useless and inoperative, and the grant exists for the purpose only of being revoked. Such grant is revocable under section 76 of the Law of Succession Act. Upon its revocation, a fresh application for grant should be made in the usual way, following procedures laid down in the Law of Succession Act and the Probate and Administration (Rules)…”

35. It was submitted that failure to follow the procedure for substitution of administrators left the Applicant without any capacity to deal with the estate in these proceedings. That though it was alleged that two of the administrators are deceased the surviving administrator should have instituted these proceedings. This is elaborated at Section 81 of the Law of Succession Act which states that:Upon the death of one or more of several executors or administrators to whom a grant of representation has been made, all the powers and duties of the executors or administrators shall become vested in the survivors or survivor of them.

36. The 3rd Respondent reiterated that the Applicant lacks locus standi and relied on Joseph Oginga Onyoni & 2 others-vs- Attorney General & 2 others (2016)eKLR where court held that:“The estate of a deceased person can only be dealt with by the personal legal representative of the deceased person and not otherwise in terms of Section 82 of the Law of Succession Act, Cap 160 Laws of Kenya. The court in the case of Troustik Union International & Another –vs- Mbeyu & Another [1993] eKLR held that the estate of a deceased person is vested in legal representative and it is only the legal representative who has capacity to represent the estate. In the case of Omari Kaburi –vs- ICDC [2007] eKLR Lady Justice Wanjiru Karanja (as she then was) held that:-“The law is that the grant is what clothes a person with locus standi to standi in and sue on behalf of the estate of the deceased…”.The property of a deceased person belongs to the estate and the only person who has a right over the same is the legal representative of such estate. Due process has to be followed in having a legal representative of a deceased person appointed and until that is done any actions carried on respecting the estate of a deceased person are without authority and amount to nothing as they are illegal and a nullity. The person carrying out the acts would be without any locus. Under Section 80 (2) Law of Succession Act, Cap 160 a grant of letters of administration takes effect only as from the date of issue and not otherwise. Section 82 (a) of the Law of Succession Act gives power to a personal representative to sue.”

37. On whether the 3rd Respondent has powers to pay any compensation under the Law, it was submitted that it has no power to pay any compensation as that is exclusively a mandate of the 2nd Respondent. That the Constitution contains a legal framework governing State power to compulsorily acquire private Land under Article 40. Further, that the process of compulsory acquisition of land is clearly set out in Sections 107-133 of the Land Act, as was laid down in the case of Patrick Musimba -vs- National Land Commission & 4others (2016) eKLR.

38. On whether the 3rd Respondent’s Managing Director can be held in contempt, it was submitted that the standard of proof for contempt of court proceedings are well established in Mutitika -vs- Baharini Farm Limited [1985] KLR 229, 234 as cited in the case of Kimani Gachuhi & Another -vs- Evangelical Mission for Africa & 3 others [2018] eKLR where the Court of Appeal stated thus:“In our view, the standard of proof in contempt proceedings must be higher than proof on the balance of probabilities, almost but not exactly, beyond reasonable doubt…..the standard of proof beyond reasonable doubt ought to be left where it belongs, to wit, in criminal cases. It is not safe to extend it to an offence which can be said to be quasi criminal in nature.”

39. It was further submitted that the elements of civil contempt have been well set out in a book title Contempt in Modern New Zealand as cited by the Court in Samuel M.N. & Others -vs- National Land Commission & 2 others[2020]eKLR“There are essentially four elements that must be proved to make the case for civil contempt. The applicant must prove to the required standard (in civil contempt cases which is higher than civil cases) that:-(a)the terms of the order (or injunction or undertaking) were clear and unambiguous and were binding on the defendant;(b)the defendant had knowledge of or proper notice of the terms of the order;(c)the defendant has acted in breach of the terms of the order; and(d)the defendant's conduct was deliberate.

40. The 3rd Respondent submitted that the Applicant has failed to prove the above elements against them; that the 3rd Respondent’s Managing Director cannot be held in contempt for the reason that they were not a party to the proceedings in Kajiado High Court Misc. Application No 34 of 2019; that the orders were also not directed at them but at the 1st Respondent and that the order was not served upon them and therefore the contempt of court proceedings are irregular, un-procedural and ought to be dismissed. They also relied on the case of Gachoni Enterprises Limited -vs- D.N Nyaga t/a Njeru, Nyaga & Co. Advocates & Another (2012) where the court held that:“I now wish to consider the issue whether the conditions necessary for committal for contempt have been proved. It is trite law that where committal is sought for breach of an injunction, it must be made clear what the defendant is alleged to have done and that it is breached. The notice of motion must state exactly what the alleged contemnor has done or omitted to do which constitutes a contempt of court with sufficient particularity to enable him to meet the charge. The necessary information must be given in the notice itself. The slightest ambiguity to the order can invalidate an application for committal as ambiguity can in turn lead to the standard of proof, which is the criminal standard, not being attained especially on affidavit evidence. Therefore the law is that no order requiring a person to do or abstain from doing any act may be enforced by contempt unless a copy of the order has been served personally and endorsed with a notice informing him that if he disobeys the order he is liable to the process of execution. In other words the Court will only punish for contempt of injunction if satisfied that the terms of the injunction are clear and unambiguous and that the defendant has a proper notice of the terms and the breach of the injunction has been proved beyond reasonable doubt.”

41. On introduction of new facts at the submission stage, it was submitted that it is an essential principle that parties are bound by their pleadings as was held in David Sironga Ole Tukai -vs- Francis Arap Muge & 2 others Civil Appeal No 76 of 2014(2014)eKLR, that:“In an adversarial system such as ours, parties to litigation are the ones who set the agenda, and subject to rules of pleadings, each party is left to formulate its own case in its own way. And it is for the purpose of certainty and finality that each party is bound by its own pleadings. For this reason, a party cannot be allowed to raise a different case from that which it has pleaded without due amendment being made. That way, none of the parties is taken by surprise at the trial as each knows the other’s case is as pleaded. The purpose of the rules of pleading is also to ensure that parties define succinctly the issues so as to guide the testimony required on either side with a view to expedite the litigation through diminution of delay and expense.”

42. They submitted that the Applicant introduced are laid out at paragraphs 1 at page 4 of his submissions where he explained that the served them through email; that parties are bound by their pleadings and that they cannot be allowed to introduce new facts that were not raised in their pleadings and that this issue should be disregarded. To support this they relied on the case of Daniel Otieno Migore-vs- South Nyanza Sugar Co. ltd [2018] eKLR where the court stated that:“It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded.”

Analysis and Determination 43. Before determining the Chambers Summons, it is the duty of this court to determine the Preliminary Objection first for the reason that if this court were to find that the deponent lacks locus standi to swear the supporting affidavit, then it will be clear that the Summons in improperly before this court.

44. A preliminary objection was described in the case of Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd. (1969) EA 696, where it was held as follows:“So far as I am aware, a Preliminary Objection consists of a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit……… “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.

45. Ha Black’s Law Dictionary, 9th Edition at page 1026 defines locus standi as “the right to bring an action or to be heard in a given forum”. In the case of Alfred Njau and Others ..Vs.. City Council of Nairobi (1982) KAR 229, the Court held that:“The term Locus Standi means a right to appear in Court and conversely to say that a person has no Locus Standi means that he has no right to appear or be heard in such and such proceedings”.

46. It is trite law that pleadings filed in court by persons with no locus standi are void ab initio and the court would have no jurisdiction in such actions. In Ibrahim V Hassan & Charles Kimenyi Macharia, [2019] eKLR the Court observed as follows:“Locus standi is basically the right to appear or be heard in court or other proceedings. That means if one alleges the lack of the same in certain court proceedings, he means that party cannot be heard, despite whether or not he has a case worth listening to. The issue herein is whether the Applicant lacks the requisite locus standi to seek relief from the court to revoke the grant in question issued to the Respondent. In my view, issues as regards locus standi are critical preliminary issues which must be dealt with and settled before dwelling into other substantive issues”.

47. It is clear from the record of the court that the deponent of the supporting affidavit of the Chamber Summons is not an administrator of this estate. In his own words, the deponent of the Supporting Affidavit and the 4th Applicant has stated that two of the administrators are deceased, leaving two other administrators, one who is alleged to be seriously ill and incapable of swearing the affidavit and the remaining administrator being un-co-operative. It is not lost to the court that the 4th Applicant has not adduced evidence to support those allegations. The 4th Applicant states that he is clothed with capacity to continue with these proceedings as he is a beneficiary to the estate and that he has consent of the other beneficiaries.

48. Section 81 of the Law of Succession Act provides that Upon the death of one or more of peveral executors or administrators to whom a grant of representation has been made, all the powers and duties of the executors or administrators shall become vested in the survivors or survivor of them.Provided that, where there has been a grant of letters of administration which involve any continuing trust, a sole surviving administrator who is not a trust corporation shall have no power to do any act or thing in respect of such trust until the court has made a further grant to one or more persons jointly with him.

49. Further Section 82 of the said Act provides that:Powers of personal representativesPersonal representatives shall, subject only to any limitation imposed by their grant, have the following powers-(a)to enforce, by suit or otherwise, all causes of action which, by virtue of any law, survive the deceased or arising out of his death for his personal representative;(b)to sell or otherwise turn to account, so far as seems necessary or desirable in the execution of their duties, all or any part of the assets vested in them, as they think best.

50. Section 2 of the said Act defines "personal representative" to means the executor or administrator, as the case may be, of a deceased person and "administrator" to means a person to whom a grant of letters of administration has been made under this Act.

51. From the record of the court, the 4th Applicant is neither a personal representative nor an administrator in this Cause. The orders of this court issued on 28th July, 2020 under order (d) state that:“A grant of representation to the deceased’s estate is hereby issued to Hassan Kassim Malambu, Pipi Yapindet Lekishon, Hassan Iddi Malambu and Mohammed Koitikash Malambu.”

52. It is clear from that order that the 4th Applicant herein was not named as one of the administrators. Indeed, save for Pipi Yapindent Lekishon, the rest of the Applicants are not personal representatives or administrators.

53. From the above provisions of the Law of Succession Act, it is clear what procedure applies when an administrator dies. The surviving administrator takes over the duties of administration unless there is a trust.

54. After duly considering this matter, the applicable law and the numerous authorities cited in this matter, it is clear to this court that the 4th Applicant has no locus standi to swear an affidavit in support of the Chamber Summons. He also lacks locus standi to bring this application together with the other applicants save for 1st and 2nd Applicants.

55. In view of the above, the Preliminary Objection succeeds and is hereby allowed. This means that this court cannot proceed to determine the Chamber Summons.

56. This being a succession cause involving family members, I direct that each party bears own costs.

57. In my view, it is a matter that can benefit from mediation if parties were willing to pursue that avenue.

58. Orders shall issue accordingly.

DATED, SIGNED AND DELIVERED THIS 14TH DECEMBER 2023. S. N. MUTUKUJUDGE