[2018] KEHC 9572 (KLR)
The court found that the respondent, as executor under a limited grant, lacked authority to demand rent or interfere with the applicant's and the beneficiary's quiet enjoyment of the apartment, which forms part of the deceased's estate. The purported process of proclamation and distress for rent was not sanctioned...
Source-derived case information.
- Citation
- [2018] KEHC 9572 (KLR)
- Parties
- Applicant: Shamira Riyaz Tajdin Dhanji; Respondent: Shahnaz Amin Amersh
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1331 of 2016
- Procedural Posture
- Stay Application / Ruling on Application for Stay and Setting Aside of Warrants of Attachment
- Outcome
- application allowed
- Judges
- AO Muchelule
- Legal Topics
- Succession Estates, Grant of Probate, Powers of Executor, Warrants of Attachment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Shamira Riyaz Tajdin Dhanji
Applicant
Shahnaz Amin Amersh
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay and Setting Aside of Warrants of Attachment
Legal Issues
- 1 Whether the executor under a limited grant can lawfully demand rent or attach property belonging to the named beneficiary of the estate.
- 2 Whether the process of proclamation and distress for rent against the applicant was legal and within the powers granted by the court.
- 3 Whether the warrants of attachment and any consequential orders relating to the apartment should be set aside.
Ratio Decidendi
The court found that the respondent, as executor under a limited grant, lacked authority to demand rent or interfere with the applicant's and the beneficiary's quiet enjoyment of the apartment, which forms part of the deceased's estate. The purported process of proclamation and distress for rent was not sanctioned by the limited grant and amounted to an abuse of process. Consequently, the warrants of attachment and any related execution processes were set aside to protect the interests of the applicant and the beneficiary pending the full hearing and determination of the succession cause.
Court Disposition
application allowed
Orders
- The application is allowed.
- The warrants of attachment and any process of distress of rent by the respondent in respect of apartment No. 4 on LR No. 209/91/8 on 1st Parklands Avenue in Nairobi are set aside.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
SUCCESSION CAUSE NO. 1331 OF 2016
IN THE MATTER OF THE ESTATE OF RIYAZ TAJDIN RAHEMTULA DHANJI (DECEASED)
SHAMIRA ROYAZ TAJDIN DHANJI..................APPLICANT
VERSUS
SHAHNAZ AMIN AMERSH......RESPONDENT/EXECUTOR
RULING
1. The deceased Riyaz Tajdin Rahemtula Dhanji died testate on 30th June 2016 at Parklands in Nairobi. Through the Will dated 21st May 2013 he appointed his sister Shanaz Amin Amersh (the respondent) as the executor. His (the deceased’s) daughter Aleya Riyaz Tajdin Dhanji was named as the sole beneficiary. On 5th July 2017 the court granted the respondent letters of administration ad colligenda bona, and asked her to apply for full grant within six (6) months. On 27th July 2017 she petitioned for probate of the written Will. Aleya Riyaz Tajdin Dhanji filed her objection and petitioned by way of cross-application for grant on 12th September 2017. Josephine Kathure Rukaria and Alnoor Ebrahim Kassam each filed response to the petition and cross-petition. The petition and cross-petition have not been heard.
2. The applicant Shamira Riyaz Tajdin Dhanji is the mother of Aleya Riyaz Tajdin Dhanji and states that she is the widow of the deceased. On 8th May 2018 she filed this application seeking stay of warrants of attachment and any execution relating to apartment No. 4 on LR No. 209/91/8 on 1st Parklands Avenue pending the hearing and determination of the succession cause. She sought that the warrants and any consequential orders relating to the apartment be set aside. What has happened is that the respondent has instructed auctioneers to proclaim the applicant’s property in the apartment to recover rent arrears to the tune of Kshs.1,805,000/= that is allegedly owing to the estate. The applicant states that she and her daughter have resided in this apartment for over 20 years. The apartment forms part of the estate of the deceased. They have never paid rent over the property. Her case is that the purported process of proclamation, in the name of seeking to recover unpaid rent, is not only illegal but also an abuse of process, and intended to embarrass, annoy, punish and deprive her of her property. She argued that the respondent’s power under the limited grant did not include what she is doing by way of the proclamation.
3. The application was served but did not elicit any response.
4. It is not denied that the applicant and the only named beneficiary of the Will of the deceased reside in this apartment. The apartment is part of the estate of the deceased. The respondent, the executor, cannot purport to act under the limited grant to demand rent from the named beneficiary, or to interfere with her quiet enjoyment of the apartment of the estate.
5. I allow the application and set aside the warrants of attachment, and any process of distress of rent, by the respondent in respect of the apartment No. 4 on LR No. 209/91/8 on 1st Parklands Avenue in Nairobi. Costs shall allow the event.
6. I ask that the parties do appear before Judge Achode (Principal Judge) on 15th October 2018 to be given directions on the hearing and disposal of the succession matter.
DATED and DELIVERED at NAIROBI this 9TH day of OCTOBER 2018.
A.O. MUCHELULE
JUDGE