[2022] KEHC 11743 (KLR)

Swaleh & another v Mohammed; Sesi (Interested Party) (Succession Cause 111 of 2007 & 66 of 1998 (Consolidated)) [2022] KEHC 11743 (KLR) (12 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11743 (KLR)

Republic of Kenya

In the High Court at Machakos

Succession Cause 111 of 2007 & 66 of 1998 (Consolidated)

MW Muigai, J

May 12, 2022

IN THE MATTER OF THE ESTATE OF MOHAMMED BILALI (DECEASED)

Between

Asha Swaleh

1st Petitioner

Salim Kiprono Langat Ruto

2nd Petitioner

and

Yusuf Mohammed & Others

Objector

and

Leonard Mutuku Sesi

Interested Party

Ruling

1. This cause revolves around property described as Plot No 36/VII/5XX Flat b7/2d Pumwani Redevelopment the ‘suit property’ listed as a property of the deceased in this instant cause and in P & A Cause No 66 of 1998. In both causes the grants were confirmed on different dates.

2. What is intriguing in the two succession causes is that the deceased names are not the same. In this cause, the deceased is Mohamed Bilali while inP & A No 66 of 1998 the deceased is Mohamed Ndolo alias Mohamed Bilali alias Mzee Mohamed. Death certificates differ as follows; the cause of death is different and the date of demise is different. In this cause, the deceased death occurred on September 15, 1978 while in P & A No 66 of 1998 death occurred on 20th October, 1988. The cause of death in this Cause was shortness of breath and swelling of legs while inP & A No 66 of 1998 the cause was a head injury.

3. On November 22, 2021, upon the hearing the oral submissions of advocates for the petitioners and interested party, this court deemed it fit to verify whose estate is being distributed. The court directed the Deputy Registrar to summon the Registrar of Death of Machakos and Kitui and Assistant Chief, Amin Juma Ali to testify in respect of a Death Certificate No.955464 in the name of Mohamed Bilali who died on 15th September, 1978 issued by Kitui Registrar of Deaths and death certificate No 0818362 in the name of Mzee Mohamed who died on October 20, 1988 issued by the Registrar of Deaths, Machakos.

Viva Voce Evidence 4. PW1, Mutuku Hamisi stated that the deceased, Mohammed Bilali Kanuna was his grandfather. According to him, the deceased died in 1984 and was buried at his shamba in Tala. He stated that the deceased’s wife was called Mwanahawa Mohammed and had three children namely; Mzee Mohammed who died in 1987, Hamisi Mohammed died in 1986, Abdalla Mohammed who died in 2006, Fatuma Mohammed (his mother) and Zuhura Mohammed (1st objector’s mother). He stated that he does not know the petitioners herein since they do not have any relationship with his grandfather. In cross-examination, PW1 stated that he did not have a copy of his birth certificate.

5. PW2, Adija Ali stated that the deceased Mohammed Bilali died in 1984 and was never buried in Kitui or lived in Kitui. According toPW2, the deceased had married her aunt called Mwendwa Ngira who was her mother’s sister. She stated that she did not know how a death certificate showing Kitui came about. According to her, the deceased had a home in California Estate, Nairobi and a small plot in Tala.

6. PW3, Farouk Mungai stated that he was married to Hadija Ali (PW2), a niece of Mwanahawa Mohammed, wife to Mohamed Bilali. He stated that the eldest son of Mohamed Bilali was Mzee Mohammed who died on October 20, 1988. According to him, Mohamed Bilali died in 1978. He stated that plot B7/2D Pumwani belongs to Mohammed Bilali. He stated that family of the deceased does not have anyone by the name Mwanahawa as a wife/widow of the deceased.

7. PW4, Masinde Juma Douglas an official at the County Civil Registrar’s Office, Machakos stated that according to their official records registered on October 19, 1988 by B.N Maembe under entry No.02188053xx, Mzee Mohammed died on October 20, 1988 in Tala. He stated that Hussein MA from their office got the information from Kangundo Hospital. According to PW4, looking at the death certificate in the court record No.081832 is just serial number entry number 0218805369 which is possible to be the same as the serial of death certificates as original copies are required in various places or functions etc and have various serial numbers and entry number.

8. PW4 produced a copy of the register as exhibit No 1 which had the entries and a copy of the death certificate of Mzee Mohammed as exhibit 2.

9. In cross-examination by Mr Kahuthu, PW4 stated that the name of Mzee Mohammed is cancelled and the name of Mohammed Ndolo added, an amendment which was done in 1988, countersigned and dated. According to PW4, the age crossed out and listed as 51 years is 79 years but he doesn’t know who crossed it out. PW4 stated that correction of death register is from the Ministry of health, health facility and the Chief. He stated that the cause of death indicated in the register is head injury. According to PW4, the death certificate was generated from the Burial permit in Succession Cause No 66/98 annexed No 120067 in the name of Muzee Mohammed of usual residence–Matungulu/Machakos/ Kangundo Hospital.

10. PW4 stated that Mohammed Ndolo and Muzee Mohammed are not one and the same person. He stated that he is aware that they are father and son. It was his testimony that the death certificate relied upon is for Musee Mohammed not Mohammed Ndolo.

11. In re-examination by Mr Tamata, PW1 stated that the death certificate was amended from Musee Mohammed to Mohammed Ndolo as well as the age from 51 years to 79 years. According to PW1, when the register is availed they retain a copy and it is within their system and the original register in Nairobi.

12. PW 5, Harry Thuku Mwaniki from the County Civil Registrar’s office Kitui stated that he found the register. According to PW2, in 2003 Mr Asharif Yusuf came to their office, made an application which was entered in the entry in Authority Book-992 issued entry 1700088/03. According to PW5, a certificate was issued after payment of Kshs.50/- and receipt 673664 were issued. The death certificate was issued with Certificate/Serial/Leaf No 818531.

13. According to PW5, another copy was issued in 2007/2006 Counter Book 208 applied for by Mrs Swaleh and leaf serial No 955464 was issued and receipt No 6481687 for payment of Kshs 50/- He stated that this was late registration event of the person who had died. According to PW5, the deceased died in 1978 and was registered later. PW2 produced the extract counter authority book as exhibit 2.

14. In cross-examination by Mr Kahuthu, PW5 stated that he did not see the burial permit since it was with the Assistant Chief. According to PW5, the deceased is Mohammed Bilali aged 65 years old and the cause of death is shortness of breath and swelling of legs.

15. In cross-examination by Mr Tamata, PW5 stated that there was no register or records for the death certificate and they could not find any records. He stated that documents for death registration are with the Assistant Chief who must confirm if one is from that area and that he/she died there. That is the ID copy of the applicant and of the deceased and duly filed forms for late death registration which cannot be traced. According to PW2, Mr Ashraf was the son in law of the deceased while Swaleh, the relationship has not been indicated. PW2 stated that without the register they cannot confirm the death certificate is genuine and from their office.

16. PW 6, Amin Juma, a Senior Assistant Chief stated that Salim Ruto informed him that they had a huge debt and asked PW6 to write a letter in the court file of 21/3/2007 where he wrote Mohammed Bilali (deceased) and his son Abdalla Mohammed also passed away. According to PW3, Salim Kiprono is married to Asha Swaleh. It was PW3’s testimony that the letter is not relevant to this case at all. He stated that he was summoned to come to court to clarify about the letter. He stated that he knew Mohammed Bilali and he was child at the time.

17. In cross-examination by Mr Kahuthu,PW6 stated that he was in the administration since 2002. He stated that he was in Eastleigh from 2002 to 2007. He stated that he could not see Mohammed Bilali (deceased) in court.

18. In cross-examination by Mr Tamata, PW6 stated that he was told to write that the deceased died on 15/9/1978 by Salim Ruto and he was for asking for the loan/money and it was not in reference to succession proceedings. According to PW6, the deceased lived in Nairobi and not Kitui. He stated that he wrote that the deceased lived in Kitui as stated by Salim Ruto but the deceased lived in Nairobi. It was PW3 testimony that Salim Ruto told him that he was the son in law of the deceased hence a dependant.

Applicants/Objectors Submissions 19. On behalf of the applicants, it is submitted that the ownership of Plot No 36/VII/5 Flat b7/2d Pumwani Redevelopment is claimed by two confirmed Grants;a.Confirmation of grant issued on July 21, 2000 Estate of Mohamed Ndolo alias Mohamed Bilali alias Mzee Mohammed issued to Mwawawa Mohamed through P & A No 66/98 Machakos High Court, the beneficiary herein recorded as Mwawawa Mohamed.b.Confirmation of grant issued on December 18, 2008 Estate of Mohamed Bilali issued to Salim Kiprono Langat Ruto and Asha Swale through P & A 111/2007 Machakos High Court. Beneficiaries recorded were Salim Kiprono Langat Ruto, Asha Swaleh and Kazee Swaleh but later nullified by this court currently under the administration of public trustee.1. It is submitted that in P&A No 66/98 there is no copy of the death certificate but a burial permit of one Musee Mohamed who died on October 20, 1988 while in this Cause, the death certificate bear the name Mohamed Bilali who died on 15th September, 1978. It is submitted that inP & A No 66/98 the deceased in the certificate of confirmation of grant bear three names but inP & A 111/2007 the deceased is one person bearing a similar name in coined names of the deceased in P&A 66/98. 2.The Objectors point out that the deceased Musee Mohamed indicated in the burial permit is aged 51 years but according to the Birth/Death Registrar, Machakos, an amendment was done on the entry and a Mohamed Ndolo aged 72 years was introduced. According to the objectors, these are two distinct persons due to the age. It is submitted that the amendment as it stands makes it easy for any rogue applicant at any time to either get a death certificate of Mzee Mohamed or Mohamed Ndolo using the same entry.3. It is submitted that it is only the court that can rectify and remove the amendment since the current registrar only issued the death certificate of Mzee Mohamed aged 51 leaving the record naked which could be abused by making fraudulent entry. According to the Objectors there is a high possibility that Mohamed Ndolo death certificate could have been extracted, used and criminally expunged from the file. According to the objectors,P & A 66/98 brings out the making of fraud as Mwanahawa Mohamed, the applicant therein used a burial permit of one Musee Mohamed and no death certificate is in the file.4. In conclusion, it is submitted that there is a high probability that the Deputy Registrar while sending form 60 for publishing at the Kenya Gazette diligently ascertained that a death certificate was available.5. According to the objectors, the deceased Kamba name was Kanuna Ndolo until he converted into Islam and changed his name to Mohamed Bilali Kanuna s/o Ndolo. It is submitted that the person who owned B7/2D Pumwani Redevelopment Nairobi was Mohamed Bilali Kanuna Ndolo who died at Tala aged 72 years and his wife was Mwanahawa Muhammed and children were; Musee/Mzee Mohamed-deceased, Hamisi Mohamed-Deceased, Fatuma w/o Hamisi-Deceased, Abdala Mohamed-deceased and Zuhura Mohamed believed to be alive in Shimba Hills location, at the Coast.

Interested Party’s Submissions 25. The Interested Party (IP) has urged the court should rule on the validity of P & A No 111 of 2007 on the basis that by 2017 the originators/petitioners had either withdrawn the claim or passed on. According to the IP, the cause was based on a death certificate from Kitui and a letter of a Chief from Nairobi that were not authentic. It is submitted that theIP main interest in this case is that of a purchaser and owner of the property pursuant to the Confirmation of the Grant issued in P & ANo 66 of 1998.

26. According to the IP, the consent dated 1December 6, 2009 entered into by the petitioners herein, Yusuf Mohamed(1st objector) and Idi Hamisi should be set aside having been recorded and/or obtained by fraud or collusion and by an agreement contrary to the public policy of the court and material non-disclosure. It is submitted that parties to the consent are no longer parties in this cause or are no more. According to the IP, vide affidavits deponed on March 23, 2015, the petitioners withdrew their claim on the basis that they have interest in the estate and had been misled by their advocates. According to theIP, the objectors are allegedly dead or missing and have never been replaced or substituted. It is submitted that the death certificate from Kitui and the Chief’s letter were fraudulently procured and the authors admitted that they were not proper documents for succession purposes and that the deceased never lived in Nairobi or Kitui to warrant issuance of the documents.

27. The IP has asserted that there is a valid certificate of grant issued in P & A No 66 of 1998 at Machakos in relation to the same property and the deceased person. According to the IP, the court would have not endorsed a consent had the existence of a parallel succession cause been brought to its attention.

28. Regarding who is to meet the costs of the cause, it is submitted that the firm of Kahuthu & Kahuthu Advocates while representing the objectors and the so-called respondent were fully aware this cause was fraudulently filed hence the advocates should shoulder the wasted costs. Reliance was placed on the case of Ngomeni Swimmers Ltd vs Lalana Chera Suleiman (2014) eKLR where the court held that in determining whether an advocate should bear costs personally, his conduct is of paramount importance. The IP urged the court to close this file and any order issued in this matter be discharged forthwith with costs to the IP.

29. I have considered the viva voce evidence, exhibits and the submissions filed.

30. It is not in dispute that there are two confirmed grants in respect of the suit property. In this Cause,P & A 111of 2007 the certificate of confirmation of grant was issued jointly to Salim Langat Kiprono and Asha Swaleh on December 1, 2008 while in P & ANo 66 of 1998, the grant was issued to Mwanahawa Mohamed on July 21, 2000. It will be noted thatP & A No 66 of 1998 was filed in 1998 before this Cause.

31. It is trite law that two grants cannot issue in respect of the same estate. Inre Estate of Sandra Gathoni Kanyotu (Deceased) [2022] eKLR Onyiego J stated that Form 30 issued by the Principal Registrar is necessary to ensure that there are no multiple causes in respect of the same estate. According to Nyakundi J in Selina Tipango vs Emily Wambui Ishamael & 7 others (2016) eKLR the filing of two separate petitions in two different courts relating to the same estate and property amounted to concealment of material facts and therefore an illegality.

32. In the same vein, inRe estate of Kanyeki Kimatu (deceased) ( 2020) eKLR Meoli J. stated that;“the issuance of the two grants over the same suit property by two different courts which contradict each other is an embarrassment to the court process……The two grants no doubt present a difficulty and/or impossibility when it comes to distribution and enforcement.”

Determination 33. The issues that emerge for determination are;a.Whether Mohammed Bilali and Mohamed Ndolo alias Mohamed Bilali alias Mzee Mohamed are one and the same personb.Who are the beneficiaries entitled to the estate.c.What are the appropriate ordersWhether Mohammed Bilali and Mohamed Ndolo alias Mzee Mohamed alias Mzee Mohamed are one and the same person

34. The court perused the file in P & A No 66 of 1998, and did not find a copy of the death certificate but a burial permit dated October 25, 1988 as well as the gazette notice of May 8, 1998 which established that the deceased therein died on October 20, 1988 while in this Cause, the death certificate dated 1October 5, 2003 as well as the gazette of 1982 established that the deceased died on September 15, 1978.

35. The court notes that the name Mohamed Bilali appears in the aforesaid documents save for the burial permit which bear the names of Muzee Mohamed. According to the Gazette notice of May 8, 1998, the deceased’s place of death is indicated as Tala, Kyaume while in the Gazette Notice of 1982, it is indicated as Kitui Town.

36. Of significance to note in the viva voce evidence, is the evidence of PW4 andPW5 who came from the County Civil Registrar’s office in Machakos and Kitui respectively. AccordingPW4, Mzee Mohammed died on October 20, 1988 while PW5 stated that the deceased is Mohammed Bilali who died in 1978. According to PW4 Mohamed Ndolo and Musee Mohamed are not one and the same person. According to PW4, the two people are a father and son. In his evidence, PW2 stated that they were not sure whether the death certificate in this cause was genuine or not for purposes of a succession cause.

37. What emerges from the evidence before the court is that the suit property is claimed in the two Succession Causes where the deceased persons are different in each cause in terms of names, age, cause of death, dates of death and the office that issued the death certificates.

38. The dates of death are different as well as the cause of death.PW4 and PW5 stated that the deceased died in 1984. PW3 and PW4 stated that Mzee Mohammed died on October 20, 1988. PW4 stated that Mohammed Ndolo and Muzee Mohammed are not one and the same person. He stated that he is aware that they are father and son. This evidence also came fromPW5 who stated that the eldest son of Mohamed Bilali was Mzee Mohammed who died on October 20, 1988. According to PW4, Mohamed Bilali died in 1978. It was PW5 testimony that the Mohamed Bilali died in 1978. PW6 also stated that his letter was written in respect of the estate of Mohamed Bilali.

39. The court’s view is that the evidence on record does not conclusively determine the deceased’s estate. The records disclose variant information on the deceased person in both parallel Succession Causes and files. The family members evidence and the officials who testified on the different death certificates did not assist the court to unravel the mystery of 2 succession causes, 2 different death certificates containing diverse entries such that it is not legally possible to determine from the evidence on record whose and which estate belongs to Mohamed Bilali Mohamed Ndolo or Mzee Mohamed and/or if they are one and the same person with different names. If on the other hand he is one and the same person as we are led to believe why the disparity in information, documents and separate Succession cases relating to the one and the same person?

Who are the beneficiaries entitled to the estate. 40. According toPW1, Mohamed Bilali was married to Mwanahawa Mohamed and their four children are deceased and one Zuhura Mohamed who cannot be traced but resides in Shimba Hills, Coast. Zuhura Mohamed is said to be the mother of Yusuf Mohamed the 1st objector herein. PW1 stated that Fatuma Hamisi who was a daughter of Mohamed Bilali who was his mother hence Mohamed Bilali was his grandfather.

41. According to PW1, Fatuma Hamisi died in 1997. In cross-examination, PW2 stated that Mohamed Bilali was married to her aunt, Mwendwa Ngira who was her mother’s sister. PW2 stated that the 2nd petitioner, Salim Kiprono Ruto was not a son in law of the deceased and neither was the 1st petitioner, Asha Swaleh a granddaughter of the deceased. According to PW2, Asha Swaleh was her sister’s daughter and married to Salim Ruto. Neither Salim Ruto nor Asha Swaleh has testified to counter PW2 evidence. PW3 stated that he is married to PW2. According to PW3, Mwawawa Mohamed was not married to the deceased.If the court from the evidence on record cannot conclusively determine the deceased who owns the suit property in question it cannot decisively determine the beneficiaries of the estate of the deceased.

What are the appropriate orders 42. Section 47 of the Law of Succession Act spells out the jurisdiction of the High Court in the administration of estates in these terms:“The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient:.."

43. Rule 73 of the Probate and Administration Rules enshrines the inherent power of this court. It reads:“Nothing in this rule shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the court”.

44. In Moraa Gisemba vs David Nyakoi Ongori [2015] eKLR the Court held that:-“I find that rule 73 of the Probate and Administration Rules grants this court the wide discretion to make appropriate orders as may be necessary in the interest of justice or to prevent abuse of the process of the court…”

45. Section 66 of the Law of Succession Act, which provides as follows –a.Surviving 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 –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 in Part V;c.The Public Trustee; andd.Creditors.’

46. The court record confirms that the same issue was ventilated before hon DK. Kemei J vide rulings delivered on January 23, 2020 and September 21, 2020 as follows:-“Ruling of January 23, 2020“It is my considered view that the parties herein should be given an opportunity to present their rival claims via viva voce evidence so as to enable the court to establish the genuine persons to administer the estate and also to establish whether there are any creditors to the estate.”Ruling of September 21, 2020“It is also not in dispute that this court on the December 16, 2009 ordered that the estate herein be administered by the Public Trustee pending further orders in a bid to safeguard the estate as the court dealt with the rival claims placed before it”

47. The administration of the estate had been vested and remain in the Public Trustee on December 16, 2009 and shall be vested in the Public Trustee.

48. It follows that the order of preference set out in section 66 of the Law of Succession Act is not binding to the court. It is discretionary. Section 66 refers to it as ‘a general guide.’ The court can appoint administrators without following the order of preference. Priority is given to surviving spouses, followed by the other beneficiaries entitled in intestacy as set out in part V of the Act, then the Public Trustee and creditors. The persons entitled in intestacy according to part V, in their order of preference, include children (and grandchildren where their own parents are dead), parents, siblings, half-siblings and other relatives who are in the nearest degree of consanguinity up to and including the sixth degree.

49. In this case PW1,PW2 and PW3 stated that the only surviving child of Mohamed Bilali may be Zuhura Mohamed who resides in Shimba Hills but cannot be traced. It is not in dispute that Yusuf Mohamed is the son of Zuhura Mohamed. According to PW2, the deceased wife was Mwendwa Ngira but PW2 has not informed court on the whether she is alive or dead.PW1 stated that her mother Fatuma Hamisi died in 1997. According toP & ANo. 66 of 1998, Mwawawa Mohamed who PW1 stated was the wife of the deceased Mohamed Bilali died.

Dispositiona.In the premises, the court finds that from evidence on record, Mohamed Bilali, Mohamed Ndolo and Mzee Mohamed are not conclusively determined to be one and the same person with different names or are different persons.b.Administrators are appointed from beneficiaries of the deceased’s estate in the ensuing circumstances the beneficiaries are not determined at this stage. Therefore, the Public Trustee is appointed administrator of the estate (s) and/or remains administrator in both matters and may file any relevant application to aid determination of the deceased and beneficiaries.c.& A No 66 of 1998 is consolidated with this instant Cause P & A 111 of 2017 which shall be the lead file for further hearing and determination of the deceased, estate and beneficiaries.d.Each party meet their own costs.t is so ordered.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT MACHAKOS THIS 12TH DAY OF MAY, 2022. M.W. MUIGAIJUDGE