REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

SUCCESSION CAUSE NO.  30 OF 1980

IN THE MATTER OF THE ESTATE OF ADBALLA SALIM BAKHSHUWEIN (DECEASED)

SALIM A BDALLA BAKHSHUWEIN ..........RESPONDENT

VERSUS

ALI BADALLA BAKHSHUWEIN                                            

SAID ABDALLA SALIM                                                           

HUSSEIN ABDALLA SALIM.........................APPLICANTS

RULING

1.   From the onset, I must confess that this is one of the oldest files in the corridors of justice in Mombasa law courts. It has a long winding history with the beneficiaries    frustrating the effort in completing the administration of the estate to serve their selfish interest. The urge to finalize distribution of the estate has lately been contributed by lack of interest to let go a cash cow which kept producing milk for the few among them the administrators more particularly the original administrator who stood to gain by managing and mismanaging the vast estate.

2.   Due to the age of the file, some of the initial pleadings and court proceedings from 1980 when the suit was first filed could not be retrieved or found.  I will hence endeavour to use the available record to make a determination of the pending   application for confirmation of the grant and the protest arising therefrom.

3.   Briefly, the deceased herein is said to have died testate on 5^th May, 1980 while domiciled in Malindi. Prior to his death, he had executed a will on 10th January, 1968 in which he appointed Abdalla   Salim Bakhshuwein his son the objector herein as the sole executor. According to the will, the deceased bequeathed his estate to his heirs/ beneficiaries and distribution to be done according to Islamic sharia.

4.   Consequently, the executor petitioned for a grant of probate. The same was issued on 2^nd July 1980. Before the grant could be confirmed, parties appeared before   the Kadhi’s court for determination of individual heir’s or beneficiaries’ share in accordance with Islamic law. Determination was done before the Kadhi Malindi on 10^th and 16^th December 1993.

5.   The same distribution list order was later filed in the high court for use in distributing the estate during confirmation.

6.   However, things remained silent and dormant without much action till 20^th July 2020, when three of the beneficiaries namely; Ali Abdalla Bakhsuwein, Salim Abdalla Salim and Hussein Abdalla Salim filed summons for revocation of grant dated 17^th July 2020 seeking revocation of the grant and a fresh grant of letters of administration intestate to issue to them, and that the executor to give proper account of the estate.

7.   The application was premised on grounds that the petitioner /executor had refused to distribute the estate to the beneficiaries. Further, that he had failed to give a proper account of the estate despite having been served with several demands to do so.

8.   In reply, the petitioner filed a replying affidavit on 6^th October, 2020 denying the claim of inability to administer the estate and that he had failed to account for the same. He averred that he had distributed a large part of the estate to the respective beneficiaries despite resistance from the applicants

9.   In their rejoinder, the applicants filed a supplementary affidavit sworn on 22^nd October, 2020 expressing the position that several plots had been sub-divided and beneficiaries given their shares save for plot 120 which the objector is reluctant to distribute.

10.    When the matter came up for directions, the court directed parties to file submissions to dispose the application. On 22^nd October 2020, the applicants filed their submissions. In a swift turn of events, the respondent lodged an application dated 25^th November, 2020 seeking the court to review its orders in disposing the application through written submissions. He instead sought orders directing hearing by viva voce evidence and that parties be granted leave to file witness statements.

11. On 4^th  March, 2021 the applicants  filed a  Notice of Motion  dated 3^rd March,2021 seeking;

a.   That the applicants be and are hereby compelled to produce the documents particularized in the supporting affidavit of Salim Abdalla Bakhshuwein sworn on the 3^rd day of March 2021.

b.   That in default of such production the applicants be held accountable to the estate for every loss related thereto.

c.   Costs of the application be in the cause.

12.   However, upon negotiations by parties on a possible outside court settlement, parties reached a consent on 10^th March, 2021. The said consent reads as follows;

i. The application dated 3^rd March 2021 and filed on 4^th March, 2021 be and is hereby marked as fully settled with each party bearing own costs;

ii.  The administrator do sign and transfer all properties to the beneficiaries within thirty (30) days from the date hereof as per the Kadhi’s court list of distribution to all beneficiaries dated 10^th December, 1993 and 16^th December,1993 attached as annexure “SAB-1” to the petitioner’s replying affidavit filed on 6^th October, ,2020

iii. The administrator together with Ali Adbdalla Bakhshuwein do sign transfers to all beneficiaries in respect of the whole of Plot No 120 Malindi as per the Kadhi’s court distribution list dated 10^th December, 1993 and 16^th December, 1993

iv.  That in full compliance with terms (ii) and (iii) above the succession dispute as relates to the estate of Abdalla Salim Bakhshuein shall be deemed as duly settled with each party bearing their own costs of the application;

v.   That in default of compliance with the above then  the summons for revocation of grant dated 17^th July, 2020 and filed on 20^th  July, 2020 the same shall be deemed allowed in terms of prayer 3,4,5, and 6 as follows;

3. The grant of probate of the estate of Abdalla Salim Bakhshuwein granted to Salim Bakhshuwein on 1^st July,1980 be revoked and or annulled.

4.  Letters of administration of the estate of the late Abdalla Salim Bakhshuwein be granted to Ali Abdalla Bakhshuwein, Said Abdalla Salim and Hussein Abdalla Salim

5. That Salim Abdalla Bakshuwein do give proper and accurate accounts of the estate of the late Abdalla Salim Bakhshuwein since 5^th May 1993, to date.

6 Costs of the application be paid to the respondent.

13. Thirty days having expired without compliance by the respondent, the grant was automatically revoked and a grant of letters of administration intestate issued to the three applicants. Subsequently, the new administrators took charge of the estate. On 11^th November, 2021, the administrators filed summons of even date seeking confirmation of the grant. They attached a proposed mode of distribution of the estate being a replica of the Kadhi’s list of distribution (order). All beneficiaries including the applicants and the respondent signed the requisite consent before confirmation acknowledging that none of them was opposed to the confirmation of the grant and the proposed mode of distribution of the estate.

14.   Despite that agreement having been executed through their respective consents entered before various advocates, Salim Abdalla Bakhshuwein the objector herein filed an objection (protest) by way of a replying affidavit sworn on 26^th November, 2021 objecting to the manner in which plot No. 120 was proposed to be shared. He claimed that he and the 1st applicant were the owners of 2/3 of plot No 120.

15.   He averred  that he has been relegated to  a low  valuable  side of the  land yet  the  applicants /administrators   had   allocated  themselves  what is more  valuable. He  stated that  some  part of the land  had been  invaded by  squatters and some  of it  is  swampy and therefore  not  commercially viable. In his view, there is need to have equitable distribution by sharing both the trouble ridden and trouble free part of the land.

16.    In their   rejoinder, the applicants filed a replying affidavit sworn on 2^nd February, 2022 in which the 1^st applicant one Ali stated that he and the respondent bought the land using  money realised from the estate hence  holding plot No 120 in  trust for  the  family  (estate) and therefore each heir is entitled to  a share.  That the respondent (objector) has failed to account for the income generated from the estate since 1993 to date.

17.   It was further averred that plot No 120 like other properties was distributed by the Kadhi to all beneficiaries including the widow who got 42 acres while sons got 24 acres each, daughters 12 acres each and some 30 acres reserved for utilities.

18.    It  was  contended that the  respondent  cannot disown a  consent he wilfully  entered before Obaga his own advocate on 5^th November,2021.That  having  distributed all  other properties  in  accordance with the Kadhi’s distribution  order  issued in  1993, he  cannot  now say he was not  part of the arrangement. He also stated that except for the respondent, the entire family members 15 in number have no objection. He expressed concern and disgust that 53 years down the line the respondent does not want to complete the administration of the estate.

19.   When parties appeared for directions, they agreed to file submissions to dispose the application. Consequently, the applicants filed submissions on 4^th February 2022 through the firm of Khatib and Co. advocates   entirely adopting the content in the affidavit in support of the application and a supplementary affidavit.

20.    In  their  oral submissions , Mr Mogaka advocate appearing together with  Khatib advocate submitted that  the  respondent  was being  dishonest  by  disowning his own consent through which he agreed to the  mode of distribution. That  the  estate having been shared in 1993 by the  Kadhi and  the  respondent having executed the   order by  distributing the  estate  except plot 120, he cannot  stand  to oppose the mode of  distribution  out of  which he has  already benefitted.

21.    On their part, Mr Angima admitted that the respondent is not  opposed to the   distribution  of the  estate  according to the  1993 Kadhi’s distribution  arrangement but  rather the  quality of the  part  allocated to him  and  other  beneficiaries. Counsel submitted that he does not object to the distribution of the estate in respect of the   other assets except plot No. 120.

22.    Learned counsel  contended that  plot 120 has three  characteristics namely; land  that is  invaded  by  squatters; land that is  swampy and  trouble free and good land . He opined that the respondent and other beneficiaries have been allocated the    squatter invaded and swampy parts while the applicants have taken the “choicest” part. According to Mr Angima, equity demands fairness by parties sharing the burden by each getting part of the good and bad land.

23.   I have considered the application herein and objection thereof. I have taken into account submissions by both counsel. As stated earlier, it is a shame that a file of 1980 is still pending determination. Largely, it is the beneficiaries and more particularly the respondent who was the administrator for over 40 years to blame for not completing administration of the estate.

24.    Indeed, litigation must come to an end in any fair judicial system. See Patrick Gathenya Vs Esther Njoki  Rurigi and another  (2008) e KLR. From the pleadings and parties’ submissions, there is only one property that is in dispute. It’s an indisputable fact that; the deceased died testate; the Kadhi’’s court Malindi determined heirs and distributed the estate in accordance to the Islamic law. It is also not in dispute that beneficiaries have since assumed possession of their respective shares of the rest of the properties except plot No 120.

25.   What is the main contention in plot No 120? When the   respondent   was removed from the role of administrator, a fresh grant was issued to the applicants   who moved promptly to seek confirmation of the grant. In support of the application they attached a schedule of distribution of assets which is in tandem with the distribution list of the Kadhi issued since 1993. Among, the documents attached are consents of all beneficiaries including the respondent/objector who signed his before his advocate Mr Obaga on 5^th November, 2021.

26.      When all beneficiaries appeared in court for confirmation of the grant on 31^st January, 2022, the respondent did not appear.  Everybody else supported the mode of distribution proposed by the applicants. The  only reason  adduced by the respondent  for  objecting the application for  confirmation  of the  grant is  that  he and  other  beneficiaries  have been relegated to  less valuable parts of the plot. He however did not name those other beneficiaries as nobody else has complained.

27.  From the   consent   signed by all beneficiaries in support of the confirmation application, each beneficiary was aware and indeed presumed to have understood the parts allocated to him or her. The respondent cannot turn round and say that he did not understand the consent document he signed before his advocate. When he signed the consent, his advocate must have duly understood what his client was signing. There is no allegation of fraud or misrepresentation of facts alleged in executing the consent.

28.   The  respondent  has been enjoying the  fruits of the  estate for  over 40 years without  regard to completion  of the  administration  of the  estate. He should not be heard to complain   over distribution of plot 120 yet it has been there since 1993.

29.   As to being allocated a less valuable land, there was no proof by evidence that such a situation is prevailing.  Secondly, nobody else has complained over similar ground yet he claims that he is not the only one affected by the proposed mode of distribution.

30.   I do not find any merit in the objection/ protest. If there are any squatters, he is not the only one affected. In any event, the law will take its own course in dealing with the squatters.

31. Having  dismissed the  objection, I am satisfied that the application for confirmation  of grant is merited and the  same is  allowed  as prayed  and the estate be distributed  in   accordance with the  proposed mode of distribution in  the affidavit in  support.

32. I however need to correct an error in the grant of letters of administration intestate issued to be substituted to read a grant of letters of administration with written will annexed.  This will take care of the fact that the estate was a testate estate but now without the original executor administering the estate.

33.   As regards costs, this is a family dispute and each party to meet own costs.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 15TH DAY OF FEBRUARY, 2022

J. N. ONYIEGO

JUDGE