[2017] KEHC 4637 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

SUCCESSION NO. 326 OF 2012

IN THE MATTER OF THE ESTATE OF SAID ABDULRAHMAN AHMED HASSAN (DECEASED)

MAHFUDH ABDULRAHMAN AHMED.…..............................................………APPLICANT

VERSUS

MOHSIN SAIDABDULRAHMAN………..………........................….…………RESPONDENT

RULING

1. The deceased herein Said Abdulrahman Ahmed Hassan (“the Deceased”) died intestate on 29. 12. 93 at the King Abdul Aziz Hospital, Jeddah, in the Kingdom of Saudi Arabia. The record shows that a Petition for a grant of letters of administration intestate was filed on 8. 8.12 by Mohsin SaidAbdulrahman, the Respondent herein in his capacity as son of the Deceased. The Deceased was survived by a widow, 2 sons and 5 daughters. A Grant of Letters of Administration (“the Grant”) was issued to the Respondent on 18. 12. 12.

2. By a Summons dated 13. 2.13, Mahfudh Abdulrahman Ahmed, the Applicant herein seeks in the main the revocation of the Grant. The Application is premised on the grounds that the proceedings to obtain the Grant were defective in substance; that the Grant was obtained fraudulently by making of a false statement or concealment from the Court of material facts; that the Grant was obtained fraudulently by means of untrue allegation of fact essential in point of law to justify the Grant.

3. The Applicant avers that upon the demise of the Deceased, who was his brother, he married the widow of the Deceased and took in her young children as his own. He claims that with the consent of the Deceased’s widow and their father, he used his own resources to construct a 2 storey permanent structure on Plot No. Msa/Block XVI/1343 comprising of 5 shops on the ground floor and 2 flats on the 1st floor. The Applicant occupies 1 flat while the Respondent and his mother occupy the other flat.

4. It is the Applicant’s case that the Respondent concealed from the Court the fact that he had filed Petition No. 72 of 2012 in the Kadhi’s Court against the Applicant in respect of the estate of the Deceased. It is further stated by the Applicant that his father whos is also the Deceased’s father is entitled to 1/6 share of the estate of the Deceased under Islamic Sharia yet the Respondent failed to include him as one of the beneficiaries of the estate. The Applicant further states that the buildings which he put up on Plot No. Msa/Block XVI/1343 is a liability of the estate a fact the Respondent failed to disclose to the Court. The Respondent also included Plot No. Msa/Block XVI/1188, Hassan Butchery and Guraya Butchery as assets of the estate of the Deceased but the same do not belong to the Deceased. Plot No. Msa/Block XVI/1188 belongs to the Deceased’s and the Applicant’s father, Guraya Butchery belongs to the Deceased’s father while Guraya Butchery belongs to the Applicant.

5. In his Replying Affidavit sworn on 4. 4.13 and filed on 5. 4.13, the Respondent denies that the Applicant constructed the building on Plot No. Msa/Block XVI/1343 using his own resources and has never provided any evidence to that effect. He avers that the funds for construction had been left by the Deceased with the Respondent’s grandfather before his demise. The Respondent denies that the Applicant took in the Respondent’s family and avers that after construction was completed, the Applicant asked the Respondent’s mother if he could occupy the flat on 1st floor. The Respondent states that the Applicant has since completion of the building rented out the shops and has never accounted for the rents collected. On Petition No. 23 of 2012 in the Kadhi’s Court, the Respondent concedes that he filed the same but states that the cause has been stayed. He claims that the Applicant did not object to the proceedings herein upon gazettement of the same. He accused the Applicant of intermeddling with the estate of the Deceased and using the Court process to delay the matter herein so as to continue living on the property of the Deceased and collecting the rents on the property. The Respondent also claims that the Applicant filed ELC No. 37 of 2013 in which he stated that Plot No. Msa/Block XVI/1343 belongs to him, the Deceased and their father. The Respondent further avers that the 2 Butcheries were co-owned by the Deceased, his brother Abdalla Abdulrahman and their father.

6. The parties filed written submissions as directed by the Court. I have carefully considered the Application and the rival submissions as well as the authorities cited. The law relating to revocation of grants is found in Section 76(b) 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) …”

7. The issues for determination are:

i) Whether the proceedings to obtain the Grant were defective in substance by dint of being subjudice;

ii) the Grant was obtained fraudulently by making of a false statement or concealment of facts or untrue allegation;

iii) Whether the Grant should be revoked.

8. On whether the proceedings are defective for being subjudice, it was submitted for the Applicant that at the time the Petition herein was filed, there existed Petition No. 23 of 2012 in the Kadhi’s Court. This according to the Applicant constituted a breach of the principle of subjudice. For the Respondent, it was argued that this issue was dealt with by Odero, J. in her Ruling of 11. 9.15 and delivered by Emukule, J. on 29. 10. 15. The record shows the Respondent had raised a Preliminary Objection in respect of an application by the Applicant dated 15. 4.13 inter alia that there were similar proceedings over the subject estate in Kadhi’s Court No. 23 of 2012 filed prior to the proceedings herein. A careful perusal of the said Ruling reveals that the issue of the matter herein being subjudice was indeed dealt with. The learned Judge stated in part:

“It was argued that the current High Court proceedings are subjudice as proceedings in respect of the same estate are ongoing in the Kadhi Court. I note that in actual fact that Kadhi succession cause no. 23 of 2012 was withdrawn by the Petitioner on 20th May 2013 by way of a Notice of Withdrawal and Discontinuance of cause filed on 29/5/15 (sic).

I have no doubt that this step was taken in order to provide leeway for this present cause to proceed. The fact of the matter is that there is currently no concurrent succession cause pending before the Kadhi cause (sic) thus this ground of the Preliminary Objection must fail.”

9. In view of the above Ruling by the learned Judge, I do find that the issue of subjudice has been dealt with and the same cannot be relied upon as a ground for revocation of the Grant.

10. The Applicant claims that the Grant was obtained fraudulently by making of a false statement or concealment of facts or untrue allegation. The Applicant submits that he married the Deceased’s wife and together they had one child. He later divorced her. He contends that he constructed a 2 storey building on Plot No. Msa/Block XVI/1343. It would therefore be a grave injustice if the Applicant were to be chased away from the premises after expending his resources on the property. It was argued that an expert be engaged to ascertain the liability of the estate. The Applicant submitted that the Respondent included Plot No. Msa/Block XVI/1188 as part of the estate of the Deceased which belongs to the father of the Deceased Abdulrahman Ahmed who is alive. He also included Hassan Butchery which belongs to the Applicant’s father and Guraya Butchery which is the property of the Applicant.

11. For the Respondent, it was submitted that it is not disputed that Plot No. Msa/Block XVI/1343 is in the name of the Deceased. On the claim by the Applicant for a share of the building on the said Plot, it was argued that even if the Applicant had put up the building, which is denied, the building is part and parcel of the Plot and the same cannot be extricated therefrom. It was further contended that the Applicant has not registered any encumbrance against the title to the Plot to protect his alleged interest.

12. Section 51(2)(g) of the Law of Succession Act provides that an application for a grant of representation should include inter alia:

(2) Every application shall include information as to—

“in cases of total or partial intestacy, the names and addresses of all surviving spouses, children, PARENTS, brothers, and sisters of the deceased, and of the children of any child of his or hers then deceased;”(emphasis mine)

It is not disputed that the father of the Deceased is alive. The Respondent failed in his petition for the Grant herein to include the father of the Deceased Abdulrahman Ahmed Hassan, contrary to the requirements of Section 51(2)(g) of the Act. The Court therefore finds that the Respondent’s omission amounts to concealment from the court of something material to the case.

13. On whether the Grant ought to revoked, it is the Applicant’s case that the same should be revoked for inclusion of assets that do not belong to the estate of the Deceased. The Applicant stakes a claim in the building on Plot No. Msa/Block XVI/1343. He further contends that Plots Nos. Msa/Block XVI/1141 and Msa/Block XVI/1188, Hassan Butchery and Guraya Butchery do not belong to the estate of the Deceased.

14. For the Respondent, it was submitted that the Applicant cannot claim a share of the Deceased’s estate on behalf of his father whom he says was not included in the list of beneficiaries. It was argued that the Respondent is a son of the Deceased and that the Applicant being a brother of the Deceased does not have priority over the widow and children of the deceased. It was further submitted that upon the demise of the Deceased, the Applicant took away all the Deceased’s documents including the original titles of Plots Nos. Msa/Block XVI/1343, Msa/Block XVI/1141 and Msa/Block XVI/1188. The Respondent was only 5 years old when the Deceased died and for 20 years the Applicant did not file succession proceedings to the Deceased’s estate. The Applicant refused to disclose to the Respondent any information regarding the Deceased’s estate. The Respondent acted in good faith and honestly believed that the Plots belonged to the estate of the Deceased. It is the filing of this cause that has compelled the Applicant to exhibit copies of the 3 properties.

15. Does the inclusion of these assets in the estate of the Deceased constitute a ground for revocation of the Grant? I think not rather than seek revocation the Applicant ought to have applied for the exclusion of the said assets from the estate of the deceased. The parties’ entitlement to Plot Nos. Msa/Block XVI/1343 and Msa/Block XVI/1188, Guraya Butchery and Hassan Butchery cannot be interrogated in the Application herein. To make any pronouncement thereon at this stage would be to pre-empt the distribution of the estate herein.

16. In the premises therefore, having evaluated the evidence and the relevant law I do find that the Respondent concealed from this Court the existence of the father of the Deceased as a beneficiary of the estate herein. However, the Court considers that this is a 2012 matter. Article 159(2)(b) of the Constitution of Kenya 2010 requires that justice be done expeditiously.

“(2) In exercising judicial authority, the courts and tribunals shall be guided by the following principles—

(a) …

(b) justice shall not be delayed;”

I find that no useful purpose will be served by revoking the Grant herein. However, in order to remedy the fraudulent acts by the Respondent and in exercise of the powers conferred upon this Court by Section 47 of the Law of Succession Act and Rule 73 of the Rules made thereunder I do make the following orders which are necessary for the ends of justice:

a) The Respondent shall within 30 days of the date hereof file a Summons for Confirmation of Grant of Letters of Administration listing all the survivors of the Deceased, revised list of assets and a clear mode of distribution of the estate.

b) The Applicant is at liberty to make his claim in the estate of the Deceased.

c) The matter will be mentioned on 19. 9.17 for compliance.

DATED, SIGNED and DELIVERED in MOMBASA this 14th day of July 2017

_____________________

M. THANDE

JUDGE

In the presence of: -

………………………………………………………… for the Applicant

……………………………………………………… for the Respondent

……………………………………………………..…….. Court Assistant