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JudgmentIn the Estate of Mridulla Kishor Makwana4 min read

In the Estate of Mridulla Kishor Makwana

High Court at Milimani High Court · · Nyaundi Patricia Mande, SC


  1. This ruling relates to the summons for confirmation of grant dated 30th January 2024, presented by the executors in which they seek that the Grant of probate with written will made on the 10th day of May 2023 be confirmed. The Application is supported by the joint affidavit of DEEPALK BABOO KANJO MAKWANA and PANKAJ BABOO KANJI MAKWANA sworn on 24th January 2024. They seek to have the grant confirmed and assets of the deceased be distributed as paragraph 4 of the said affidavit.
  2. The Summons is opposed by the 1st Objector, USHABEN MAYURDWAJ MAKWANA who has sworn an affidavit of protest dated April 18th 2024. In the said affidavit she states that she is the daughter in law of the deceased and the 2nd objector who is her daughter is the grandchild of the deceased. Her husband, now deceased, was the eldest son of the deceased herein.
  3. Her contest is on the ground that the 2nd Objector has not been adequately provided for as ‘she has only been given jewelry whose value, quality and quantity cannot be ascertained therefore inadequately provided for from the will of the deceased.’
  4. The 1st Objector further avers that the distribution schedule does not include the assets of the deceased namely a bank account at Guardian Bank, Account number 0622002578 and finally that the Executors have failed to render an account of the bank balances and all the assets of the deceased.
  5. The 2nd Executor has filed an affidavit in response to the protest dated 19th June 2024 in which he confirms that the 1st Objector is his sister in law and wife of their deceased brother who died on 21st December 2013.
  6. He avers that his parents set up his deceased brother when he relocated to Canada and therefore the brother had no claim to the estate. It is his contention that the executors seek to distribute the estate as per the wishes of the deceased. He contends that the objectors are not dependants of the deceased and that notwithstanding, the deceased in clause 6 of her will bequeathed jewelry to the 2nd Objector as she did to the other grandchildren. He therefore urges that the protest is for dismissal.
  7. The Court directed that parties file submissions. The Executors filed submissions dated 12th August 2024. The Executors submit that they seek to confirm grant of Probate of Will of the deceased. The validity of the will has not been challenged. Reference is made to the decision in Re Estate of Julius Minamo (Deceased) ]2019] eKLR and Re Estate of Samuel Njoroge Kamau ( Deceased) [ 2019] eKLR. The Executors urge the Court to uphold the testamentary freedom of the deceased and rely on the decision in Re Arthur (Deceased) Abakah & Another v Attan Hagan & Another [1972] 1. GL R435.

ANALYSIS AND DETERMINATION

  1. Upon considering the pleadings herein and submissions filed I discern the following as the issues for determination
    1. Whether the grant should be confirmed and assets of the deceased be distributed as per will dated 20th August 2018
    2. Who should pay costs
  2. The Protest challenges the will of the deceased as relates to the share of the 2nd Objector. The protest seeks to impose a fetter on the testamentary freedom of the deceased herein on the ground that the 2nd Objector has not been adequately provided for. The testamentary freedom of a deceased is provided for under Section 5 of the Law of Succession Act and it provides that every adult of sound mind may dispose of all or any of his free property by will.
  3. It is the Objectors case that the value of the jewelry is unknown and the assumption they wish the court to make is that the gift of the jewelry is minuscule, when weighed against the estate, necessitating annulling of the will. I must resist that invitation.
  4. It is well settled in law and by legal precedent that grandchildren do not inherit from their grandparents as of right instead they step into the shoes of their deceased parents and get the share due to their parents. In this instance the Objectors have not controverted the assertion by the Executors that that the deceased son of the deceased herein (their husband and father respectively) was given his inheritance to enable him settle in Canada.
  5. The issue for determination therefore is whether the 2nd Objector can mount a challenge on the testator’s discretion. I find she cannot as it is evident the testator has treated her equally with all her other grandchildren. The protest must fail on this limb.
  6. The documentation submitted in court in relation to the account at Guardian Bank does not meet the evidentiary threshold. There is nothing to show it emanates from Guardian Bank. It is ineligible, it does not reflect the account holder and account details. In any event as stated it is not certified by the Bank and this is of significance as the executors deny its existence. I also dismiss the protest on this limb.
  7. Finally, the protestors seek to compel the Executors to furnish accounts of their administration of the estate. The Executors respond by saying that the Objectors are strangers and therefore not entitled to the accounts. That may be so, but the Executors have a statutory obligation to submit accounts and the Court may on its motion require that the executors furnish it with accounts. I find therefore that the Executors are required to submit accounts.
  8. In the final analysis the following orders are made
    1. The Protest fails in its entirety
    2. The Summons for confirmation of Grant dated 10th day of May 2023 is allowed. Distribution of the estate will be as per the will and paragraph 4 of the Affidavit in support of the summons for confirmation sworn on 24th January 2024.
    3. The Executors to finalise transmission of the Estate within 180 days and pursuant to Section 83(g) produce to the Court a full and accurate account of completed administration.
    4. Mention on 26th February 2025 to confirm compliance
    5. This being a family matter each party will bear their own costs

SIGNED DATED AND DELIVERED IN VIRTUAL COURT THIS 20th DAY OF September, 2024.


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