[2022] KEHC 14599 (KLR)

In re Estate of Zakirali Hassanali Abdulhussein alias Zakirali Hassanal (Probate & Administration 90 of 2001) [2022] KEHC 14599 (KLR) (14 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14599 (KLR)

Republic of Kenya

In the High Court at Mombasa

Probate & Administration 90 of 2001

JN Onyiego, J

October 14, 2022

IN THE MATTER OF: THE ESTATE OF ZAKIRALI HASSANALI ABDULHUSSEIN alias ZAKIRALI HASSANAL

Between

Ali Hussein Hatimali Hassanali

1st Petitioner

Murtaza Hatimali Hassanali

2nd Petitioner

and

Hussein Zakirali Hassanali

1st Applicant

Hassan Zakirali Hassanali

2nd Applicant

Ruling

1. The deceased herein died testate on August 24, 2000 while domiciled in Mombasa Kenya. Prior to his death, he had executed a will dated July 7, 1987 wherein he appointed as executors and trustees to his estate his wife Bilkis Zakirali HassAnali, nephews AliHussein Hatimali HassanAli, Murtaza Hatimali HassanAli and his friend Sayed Ahemed who later renounced his appointment. Subsequently, the three executors petitioned for a grant of probate of written will on May 28, 2001. Listed as survivors of the estate in form P & A 3 Bilkis Zakirali HassanAli(widow), Hassan Zakirali HassanAli (son) and Hussein Zakirali HaassAli (son).

2. Consequently, a grant of probate of written will was issued on January 17, 2002 and confirmed on October 7, 2002.

3. Almost 20 years down the line since confirmation of the grant, Hussein Zakirali and his brother Hassan Zakirali (hereafter the applicants) in their capacity as beneficiaries/sons of the deceased filed summons for revocation of grant application dated September 27, 2021 seeking orders against Ali Hussein (2nd executor/1st respondent) and Murtaza Hatimali(3rd executor/2nd respondent) as hereunder;a.Spentb.That the grant of probate of the estate of Zakirali Hassanali Abdulhussein Alias Zakirali Hassanali granted to Ali Hussein Hatimali Hassanali and Murtaza Hatimali Hassanali on 6th November,2002 be revoked and or annulled.c.That letters of administration of the estate of the late Zakirali Hassanali Abdulhussein Alias Zakirali Hassanali be granted to Hassan Zakirali Hassanali and Hussein Zakirali Hassanali.d.That costs of the application be paid by the respondents.

4. The summons is premised on the grounds therein and a joint supporting affidavit sworn on September 27, 2021 by the applicants. It is the applicants’ case that the petitioners have refused to cooperate in distributing the deceased’s estate to its beneficiaries for over 19 years since confirmation of the grant. That in the circumstances the grant of probate issued to the petitioners should be revoked and or annulled and the same be granted to them.

5. In response, the respondents filed a replying affidavit sworn by the 2nd respondent on February 18, 2022 stating that the application is misconceived and bad in law hence should be struck out with costs. That the application was in contravention of the mandatory conditions in the Law of Succession Act, the Probate & Administration Rules, Part VIII, Section 44(1) and (2) which provides strictly that the application for revocation shall be made by summons in Form 107 and the affidavit in Form 14. He averred that the lead executor (1st executrix) having not been included as a party to the suit, the court cannot be invited to revoke a grant in her absence.

6. He further stated that they were not aware that they were executors of the estate as the petition for grant of probate was made without their knowledge or consent. That it was Bilkis Zakirali HassanAli alias Ahmedali Adamji who was handling the whole process and in possession of all material documents of the deceased’s estate. That she transferred the deceased’s bank account at Habib Bank AG Zurich, Mombasa into her name which they consented to. He denied that they were asked for their signatures on any other document to facilitate distribution.

7. He averred that the lead executor had without their knowledge transferred into herself property No Mombasa/XXI/352 in respect of which the deceased had one sixth share and therefore a beneficiary together with the applicants out of the rental income collected from the said property. Further, it was averred that the applicants had not cited specific incidents in which they had refused to cooperate in distributing the deceased’s estate. To the contrary, they accused the lead executrix together with the applicants of refusing to cooperate with them in distribution of the estate as their intention was to intermeddle with the estate of the deceased.

8. In response to the petitioners/respondents’ replying affidavit sworn on February 18, 2022, the applicants filed a further supporting affidavit sworn on March 28, 2022 by the 1st applicant. He stated that the court’s mandate is to administer substantive justice and not to deal with procedural technicalities and formalities. He deposed that one Bilkis Zakirali Hassanali Alias Bilkis Ahmedali Adamji was not made a party to this suit because it was the respondents who had failed to cooperate with her in the administration of the deceased’s estate by refusing to sign crucial documents. That he and his co-applicant had personally requested the petitioners to sign CDSC and other forms to enable the share certificates transferred and or immobilized onto the CDSC account and later transferred to the beneficiaries but they refused thus exposing the estate into waste.

9. He further stated that the deceased did not have any account with Habib Bank AG Zurich Mombasa. He dismissed the allegation that property situated on Plot No Mombasa/XXI/352 was transferred to Bilkis and instead maintained that it was still in the name of the deceased as per the search.

10. The respondents filed a further affidavit sworn by the 2nd applicant on 8th April, 2022 and reiterated their position in the replying affidavit.

11. When the matter came for directions, parties agreed to canvass the application by way of written submissions.

12. Consequently, the applicants through their advocates Mogaka Omwega &Mabeya advocates filed their written submissions dated March 28, 2022. Counsel reiterated the applicants’ position in their affidavits and submitted that the respondents/petitioners had not produced any documentary evidence to show how they had distributed the assets of the deceased. Since 2010 and 2012 when the shares were transferred to the joint names of the administrators they had not been distributed to the beneficiaries and that. That the respondents /petitioners were not being truthful in their averments.

13. Counsel further submitted that it was evident that the respondents had failed to faithfully administer the estate of the deceased and as result the estate had lost in terms of the fast declining value of the shares. In conclusion, counsel urged the court to revoke and annul the grant issued to the respondents and replace them with the beneficiaries of the estate.

14. The respondents through their advocate KA Kasmani &Company advocates filed their written submissions dated April 12, 2022. Counsel reiterated the respondents’ position in their replying affidavit thus submitting that the respondents were willing to surrender their positons as executors and urged the court to declare that; they were deliberately prevented from administering the estate of the deceased; they be indemnified against any liability /loss arising out of all administrative actions or the lack of the same arising out of the grant of probate. In the alternative, the court to dismiss the applicant’s application with costs.

15. Having considered the application, responses therein and rival submissions by both counsel, it is now my duty to determine whether the application is properly before this court and; whether the grant of probate should be revoked and or annulled.

16. Before I delve into the issue of revocation, I wish to address the respondents’ concern that the application is not properly before the court as it offends certain mandatory conditions in the Law of Succession Act, the Probate & Administration Rules, Part VIII, Section 44(1) and (2) which provides strictly that an application for revocation shall be made by summons in Form 107 and the affidavit in Form 14.

17. Rule 44(1) and (2) of the ProbateandAdministration Rules provides;1. Where any person interested in the estate of the deceased seeks pursuant to the provisions of section 76 of the Act to have a grant revoked or annulled he shall, save where the court otherwise directs, apply to the High Court for such relief by summons in Form 107 and, where the grant was issued through the High Court, such application shall be made through the registry to which and in the cause in which the grant was issued or, where the grant was issued by a resident magistrate, through the High Court registry situated nearest to that resident magistrate’s registry.2. There shall be filed with the summons an affidavit of the applicant in Form 14 for revocation or annulment identifying the cause and the grant and containing the following particulars so far as they are known to him—a.whether the applicant seeks to have the grant revoked or annulled and the grounds and facts upon which the application is based; andb.the extent to which the estate of the deceased has been or is believed to have been administered or to remain unadministered, together with any other material information.

18. Upon considering the summons for revocation and the supporting affidavit vis–a-vis Form 107 and Form 14, am satisfied that the same is in conformity to the said forms. In any event, strict non conformity with the rules if any which is not, cannot invalidate the substance of the application. Want of form is a mere technicality which is curable under Article 159(2) (d) of theConstitution and rule 73 of the Probate and Administration rules.

19. The next question is whether the applicant has met the grounds for revocation of the grant. Section 76 of the law of succession Act provides grounds under which a grant can be revoked as follows;“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 has ordered or allowed; orii.To proceed diligently with the administration of the estate; oriii.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; ore.That the grant has become useless and inoperative through subsequent circumstances.

20. The applicants’ case is that the respondents have failed to distribute the estate of the deceased 20 years since the grant of probate was issued. The court in the case ofIn re Estate of Joseph Odinde Odongo (Deceased) [2021] eKLR faced with a similar issue observed that;“Indeed, failure to distribute a deceased’s estate is a ground for revocation of a grant for letters of administration as provided under Section 76 (d) of the Law of Succession. However, such revocation is not automatic. It is conditional. It is dependent on the applicant demonstrating that notice has been issued to the person who has applied for the grant and that person has failed:-a.To apply for confirmation of the grant within a year from the date of such notice or such time fixed and/or prescribed by the court; orb.To administer the deceased’s estate; orc.To produce an inventory or account of administration as required by the law within a time prescribed by the court.

21. The applicants have argued that they have requested the respondents twice to sign the CDSC forms to enable the share certificate transferred into the CDSC account and also transferred to the beneficiaries. That they were also called by the applicants’ lawyers in their offices to sign the same but they ignored.

22. Unfortunately, no document or evidence was produced to prove the allegation that the applicants had made any request upon the respondents to show cause why they could not complete administration of the estate. In re Estate of Joseph Odinde Odongo (Deceased)(supra) the court had this to say;“The Objector did not furnish the court with such notice. This court therefore was not satisfied that the Objector had proven the ground set out in Section 76(d) of the Law of Succession for the revocation of the said Grant.”

23. It is trite that revocation is not automatic but a matter of discretion exercisable by the presiding judge or court. See Albert Imbuga Kisigwa v Recho Kavai Kisigwa, Succession Cause No 158 of 2000. In the instant case, the applicants are blaming the respondents of refusing to complete administration of the estate. On the other hand, the respondents denied the allegation and instead shifted the blame to the applicants’ mother the 1st executrix herein for ignoring their participation hence solely executing transactions affecting the estate in secrecy. They expressed their willingness to execute any pending documents to complete the administration of the estate. They however questioned the motive behind exclusion of Bilkis the leading Executrix in these proceedings yet she was the custodian of all documents relating to the estate.

24. Whereas a period of 19 years is unacceptable and unreasonable in administering the estate and therefore a ground to revoke the grant, I do not find revocation as the solution in the interest of the estate. Also, in view of the fact that the respondents are willing and ready to discharge their mandate, revocation is not an option.

25. Although she did not participate during the hearing of this application, Bilkis the mother to the applicants and also the 1st executrix is a critical player in the whole process. A letter addressed by Bilkisi to the Deputy Registrar in response to the application is not a formal response to the application hence not worth considering. Infact, the respondents have created reasonable doubt that if there was any delay which is admitted, the same should be directed towards the applicant’s mother who made administration of the estate a personal affair.

26. In view of the willingness expressed by both parties to complete the administration of the estate, I am inclined to direct the three petitioners Bilkis included to execute all necessary documents within 45 days to complete the administration of the estate as per the confirmed grant. Mention on 28th November to confirm compliance.

DATED, SIGNED AND DELIVERED IN MOMBASA THIS 14THDAY OF OCTOBER 2022J.N.ONYIEGOJUDGE