1.The petitioner herein moved this court vide petition for grant of letters of administration intestate filed on 10th July 2018 in respect of the estate of Mohamed Abdalla Mapapa (the deceased herein). The grant of letters of administration intestate was issued on 4th October 2019 to the petitioner herein.
2.Vide a summons for confirmation of grant dated 1st September 2020 and filed on 20th January 2021, the petitioner sought to have the grant issued to her confirmed. The said summons is supported, inter alia, by the affidavit of the petitioner.
3.The protestors were aggrieved by the summons. In response thereto, they filed an affidavit of protest against the confirmation of grant. The said affidavit, sworn by Abdu Mohamed Mapapa, on his own behalf, as well as on behalf of Salim Mohamed Mapapa, on 16th March 2023 stated that their protest to the summons for confirmation is based on the fact that the said summons omits part of the estate and liabilities of the deceased as follows; the deceased and the petitioner lived together in Germany as husband and wife for 30 years and they jointly owned in equal shares: a solar studio, boutique and massage praxis (hereinafter referred to as the business), a matrimonial house in Germany and a matrimonial house at Nyali in Mombasa.
4.The protestors stated that the relationship between the deceased and the petitioner irretrievably broke down, and the deceased was forced to travel back to Kenya, where he stayed until his demise. It is averred that the petitioner sold the business and the matrimonial house in Germany in the year 2014 while the deceased was ailing in Kenya and that she has refused to disclose the sale price. The protestors claim that the deceased never received his 50% share of the sale proceeds.
5.It was further stated that the estate of the deceased should include a 50% share of the undisclosed proceeds of the sale of the business, a 50% share of the proceeds of the sale of the house in Germany and a 50% share of the house situated at Nyali Mombasa. Regarding liabilities, it is stated that they include accrued debts/liabilities; unpaid land rates to the County Government of Mombasa, unpaid utility bills for lighting and water, unpaid cleaning bills by Ken Cleaner, unpaid Kenya Revenue Authority bills/taxes and salary and employment benefits due to Thomas Kalume Washe, a private security guard.
6.The protestors averred that the deceased was survived by one widow and eight children namely; Fatuma, Salim Mohamed Abdallah Mapapa, Ramadhan Mohamed Mapapa, Abdul Mohamed Mapapa, Fatuma Mapapa, Liza Mapapa, Sofia Mapapa, Fatuma Mapapa and Miriam Mohamed Mapapa.
7.The protest was canvassed by way of viva voce evidence.
8.The first witness, 1st protestor, testified that he was the firstborn son of the deceased. He is opposed to the confirmation of grant due to the fact that his stepmother (the petitioner/respondent) did not disclose all material facts in respect of assets and liabilities of the estate of the deceased.
9.In cross-examination, it was his evidence that his father had shares in the German assets (a house and a business) which have not been incorporated. Further, the said assets were sold by the petitioner while the deceased was still alive. The deceased claimed his share of the sale proceeds from the petitioner but was unsuccessful. He further told the court that in Islam, debts must be paid first.
10.In re-examination he told the court that the petitioner had never denied that the deceased had a house and a business in Germany and was entitled to an equal share of the same. He testified that the said debts were still pending even when the deceased was alive.
11.The petitioner, on the other hand, in her evidence, told the court that she was relying on her affidavit sworn on 1st September 2020 as her evidence-in-chief. Further, the property belonged to her and the deceased. She testified that the businesses referred to by the protestors were sold more than 20 years ago, while the house was sold in 2014.
12.During cross-examination, it was her evidence that the house and business in Germany were jointly owned in a ratio of 50:50. The house was sold for 140,000 Euros, out of which she paid 120,000 Euros to the bank.
13.It was her further evidence that the deceased was entitled to a 50% share of the sale proceeds. Although she claimed to have given the deceased his portion, she could not remember when this happened. She averred that her daughter Sofia delivered the money to the deceased in the year 2015 when she was in Kenya. That she had given her 30,000 Euros to give to the deceased, and she was sure she delivered the same, however, the deceased did not sign for the same. She further told the court that she gave 10,000 euros to a friend whom she couldn’t name to give to the deceased. However, the deceased did not sign for the said amount in evidence of receipt.
14.On the bills /debts in respect of the house in Nyali, she told the court that the expenses accrued during the lifetime of the deceased, and since she stays in Germany, she is not the one who should pay the bills.
15.In re-examination, she told the court that she sold the German house to settle the Kenyan debts.
16.On closure of the protestors and petitioner/respondent case, the court directed the parties to file written submissions. Subsequently, the protestors, through their advocates Omar Said & Company Advocates, filed submissions dated 15th August 2023. Counsel identified three issues as coming for determination, namely whether the deceased received his 50% share of the proceeds of the sale of the house and business in Germany; whether the 50% share of proceeds of the sale of the house and business in Germany form part of the estate of the deceased; and whether the estate of the deceased is liable for the bills and expenses accruing in respect of the house erected on LR 3932/I/MN.
17.On the first issue, counsel submitted that the applicant admitted to selling the house and the business in Germany but failed to disclose the selling price. The deceased never received his share of the sale proceeds, a fact that he made clear at his time of death. The petitioner did not provide sufficient evidence to prove otherwise.
18.On the second issue, counsel submitted that the disclosed sale amount of 140,000 Euros 50% belongs to the estate. He urged the court to direct the petitioner to pay the same immediately in default, the same be set off against her 50% share in the Mombasa house.
19.On the third issue, counsel submitted that it is trite law that debts and liabilities ought to be paid first before the net estate is distributed to the beneficiaries. That the bills incurred were necessary for the maintenance of the house and its protection.
20.On the other hand, the petitioner, through her advocates NA Ali & Company Advocates, filed her written submissions dated 27th September 2023. Counsel submitted on one issue, namely, whether the properties which were situated in Germany do form part of the estate. Counsel relied on Section 4(1)(a) of the Law of Succession Act and submitted that where the immovable property belonging to a deceased person is situated outside Kenya, then the same would be dealt with in accordance with the laws of that country. Thus, the law applicable in this case is the law of Germany as the subject properties were in Germany, and therefore, this court lacks jurisdiction to deal with them. The said properties cannot be said to form part of the estate as they were co-owned by the deceased and petitioner; they were sold prior to the deceased’s death and, therefore, ceased to exist prior to his death. Thus the subject properties cannot be said to be free properties forming the deceased's estate.
21.On the issue of liabilities counsel submitted that the claim is very general and vague. He urged that the protestors had not proved the same, and thus, the court cannot attach liabilities whose existence has not been proved.
22.In conclusion, counsel urged the court to dismiss the protest.
23.I have considered the protest and the response therein, the oral evidence and also the rival submissions by both counsels. The issues that call for my determination are:-a.Whether this court has jurisdiction to consider immovable property existing outside Kenya; andb.Whether the orders sought should be issued.
24.The Supreme Court, in the case of Samuel Kamau Macharia & another vs Kenya Commercial Bank Limited & 2 others  eKLR stated:-
26.The court in the case of In re Estate of Julius Ndubi Javan (Deceased)  eKLR, in discussing the jurisdiction and or duty of the Probate Court stated:-
27.The duty of this court is to determine the assets of the deceased, the survivors of the deceased and the persons with beneficial interest, and finally to distribute the assets amongst the survivors and the persons beneficially interested.
28.The petitioner’s argument is that this court has no jurisdiction on the grounds that the subject properties are situated in Germany. Section 4 of the Law of Succession Act provides:-1.Except as otherwise expressly provided in this Act or by any other written law-a.succession to immovable property in Kenya of a deceased person shall be regulated by the law of Kenya, whatever the domicil of that person at the time of his death;b.succession to the movable property of a deceased person shall be regulated by the law of the country of the domicil of that person at the time of his death.
29.The above provision, which is the provision that the petitioner has relied on, does not provide for the law applicable when dealing with immovable properties of a deceased person situated outside Kenya. However, Section 4(b) is clear on the law applicable in dealing with movable property of a deceased person.
30.In this case, the claim is for a monetary share, which resulted from the sale of the subject properties, which amounts to succession to the movable property of the deceased. Thus the same is regulated by the Law of Succession Act for the reasons that the deceased died domiciled in Kenya.
31.Subsequently, it is my finding that this court has jurisdiction to determine this matter.
32.The question that then arises is whether the subject properties are free properties of the deceased and or are properties forming part of the estate of the deceased subject to distribution.
33.The court in the case of Adan Chuda Sode vs Madina Oshe Jira & another  eKLR the court stated:-
34.The fact that the two properties were situated and or disposed of in Germany is not in dispute. This Court is not, however, able to tell whether the deceased received his portion of the sale proceeds or not. The petitioner told the court that the house was sold at 140,000 euros in order to settle debts of the house in Nyali during the lifetime of the deceased, who signed the relevant documents of sale. For the business, it was her evidence that it was sold more than 20 years ago. She did not tender any evidence to prove the same. In my view, the alleged property is speculative. It cannot, therefore, be said to be free property of the deceased capable of being distributed.
35.On the issue of liabilities, the protestors have argued that the estate has accrued liabilities in terms of property rates, KPLC power bills, water bills, KRA taxes, cleaning services by Keen Cleaner and salary arrears for security guard.
36.The petitioner questioned why she should settle the said liabilities, whereas she does not stay in the subject property.
37.Section 83(d) of the Law of Succession Act provides that a personal representative has a duty to ascertain and pay, out of the estate of the deceased, all his debts.
38.In the case of In re Estate of SMM (Deceased)  eKLR the court stated: -
39.From the above provision and case law it is evident that it is the duty of a personal representative to ascertain and pay out all debts and or liabilities of the estate of the deceased before the distribution of the same. In this case the personal representative of the deceased herein is the petitioner and thus the duty to settle the debts/bills and or liabilities lies with her before the distribution of the estate. I must note that none of the parties has tendered any evidence to prove the liabilities however, the existence of the same has not been disputed.
40.The upshot of the above is that the protest fails in one part in respect of the claim for 50% of the undisclosed proceeds of sale of the business and 50% share of the proceeds of sale of the house in Germany. The protest succeeds in respect to the settlement of the debts and or liabilities before the distribution of the estate of the deceased herein. I, therefore, direct the petitioner to ascertain and pay out all liabilities in respect of the estate herein before the distribution of the estate.