IN THE MATTER OF ESTATE OF MOHAMED TAYEBALI

1.  The Application for determination is Notice of Motion dated 28th February 2022 and presented under Section 1A,3A of the Civil Procedure Act & Order 45 of the Civil Procedure Rules. The Applicant seeks the following orders: -

1. THAT this Honourable Court be pleased to review and set aside the ruling issued on 6th March 2020 and the order thereon and/ or any other consequential orders

2. THAT costs of and incidental to this application be provided for

2. The Summons is supported by the Annexed supporting Affidavit of IDRIS JALAL MOHAMED TAYEB Director of the Interested party sworn on 28th February 2022. The Respondent also supports the Application and has sworn affidavit in support on 9th June 2023

3. The Petitioner opposes the Application and his Affidavit in Opposition was sworn on 7th June 2023.

SUMMARY

4. The interested party seeks a review/ setting aside of the impugned ruling on the basis that Orders were issued against it without being heard. It is contended by the Interested Party, that it is the legal and beneficial owner of LR NO 209/7/2 Nairobi and that the asset is therefore not part of the Estate of the deceased.

5. The Petitioner/ Respondent opposes the Application primarily on account of what is termed as delay in presenting the Application and that the Application is presented with the intention of avoiding compliance of the Court order by the Respondent.

6. To buffer up this assertion the Petitioner contends that the Director of the Interested Party is a son to the Respondent and the transfer of Directorship is simply aimed at shielding the respondent from the contempt proceedings emanating from failure to comply with the orders emanating from the ruling of 6th March 2020.

7. The Respondent takes the position that the Application giving rise to the impugned ruling is defective and incompetent in the absence of a substantive Petition. Further that at all material times the property LR No. 209/7/2 was registered in the name of the Interested Party Dar Ur Hayat Enterprises and therefore did not form part of the Estate of the Deceased herein., Vijay Hanspal opposed the summons through his Replying Affidavit dated 5th June 2023.

8. Parties agreed to canvass the Application by written submissions. The interested party filed submissions dated 26th June 2023 and supplementary Submissions dated 3rd October 2023. The Interested Party also filed Digest of Authorities dated 26th June 2023 and supplementary digest of Authorities dated 3rd October 2023. The Respondent’s Submissions are dated 17th July 2023 and the Petitioner’s submissions are dated 25th September 2023.

9. Parties then highlighted submissions on 24th October 2023.

ANALYSIS AND DETERMINATION

10. Having reviewed the pleadings, submissions filed, authorities cited and guided by the relevant law, I discern the following as the issues to be determined: -

a) Whether there was inordinate delay in filing application dated 28th February 2022

b) Whether the Court should review/ set aside the orders granted on 6th March 2020

c) Who should pay costs of this Suit

11. Before embarking on the issues for determination I identify the following as the issues that are common ground

i. The Interested Party is the registered owner of LR No.209/7/2 in Parklands Nairobi.

ii. The Property was transferred to the Company on 14th December 1990. (The validity of the transaction is contested by the Petitioner)

iii. The deceased died intestate on 20th August 1991

iv. The Petitioner and Respondent are sons to the deceased

v. As at 6th March 2020 when the impugned ruling was rendered the Interested Party was not a party to the proceedings

12. Whether there was inordinate delay in filing application dated 28th February 2022

The Petitioner submits that there was inordinate delay in presenting this Application. It is not disputed that leave to be enjoined as a party to the cause was granted on 21st February 2022 and that the Application under review was presented on 28th February 2022.

13. Nothing has presented to controvert the Interested Party’s averment that it learnt of the orders in November 2021 and moved with haste to file Application dated 24th November 2021 to be enjoined. Indeed, at paragraph 10 of the ruling dated 21st February 2022 the court observed that ‘Dar- Ul- Hayat Enterprises Limited, although mentioned throughout these proceedings, has never been a party in the proceedings. It is trite that a company is a different person altogether from its subscribers and Directors.’

14. For this reason, I find that the Interested Party has not delayed in presenting the Application.

15. Whether the Court should review/ set aside the orders granted on 6th March 2020

At this point the only issue that is for consideration is whether the Court issued orders that impact on the interest party without them being heard. The issue as to the integrity of the title is to be canvassed at a separate forum. Based on the observation of Hon. Muchelule J. (as he then was), the contempt of the Respondent cannot be transferred onto the interested party.

16. Having found that the orders issued on 6th March 2020, affected the interested party and that it was not a party to the proceedings and it was not served with the orders, there can only be one outcome. I am guided by the decision of the Court of Appeal in Onyango Oloo- Vs- Attorney General [1986-1989] EA 456 in which the Court stated-

“A decision in breach of the rules of natural justice is not cured by holding that the decision would otherwise have right since if the principle of natural justice is violated, it matters not that the same decision would have been arrived at…Denial of the right to be heard renders any decision made null and void ab initio”

17. For the aforestated reason I allow the application and set aside the orders of the Court issued on 6th March 2020 and specifically paragraphs 17,18 and 19 which have a direct bearing on the Interested Party.

18. The Respondent in his reply raised the issue of Jurisdiction of this Court to determine a dispute on ownership of an asset. The jurisdiction of the Probate Court is well established by statute and judicial precedent. It was well articulated in the judgment of Musyoka J in  re Estate of Atibu Oronje Asioma (Deceased) (Succession Cause 312 of 2008) [2022] KEHC 11046 (KLR) (22 July 2022) (Ruling) where he stated

[2.] The probate court was constituted for one sole purpose, distribution of the property of a dead person. The law which governed that area of distribution of assets of a dead person was the Law of Succession Act, cap 160, Laws of Kenya...

[3.] The central areas of concern in probate and administration were the dead person and his property. …. With respect to property, there was only one critical consideration, whether he owned any property. Modern property was subject to registration and whether a person owned a piece of property was evidenced by documents of registration or ownership.

[4.] The probate court only distributed assets that were undisputedly owned by the deceased. Assets that were unencumbered or the subject of ownership disputes were not undisputedly owned by the deceased, and were not available for distribution by the court until the encumbrances were removed or the ownership disputes resolved. Property available for distribution was defined in section 3 of Law of Succession Act as the free propriety of the deceased.

[5.] The design of the Law of Succession Act was that the mandate of the probate court was limited to distribution of the assets, and where a dispute arose on ownership of any asset, then the same should be placed in another forum, and not the succession cause, for litigation and determination. That was the spirit of rule 41(3) of the Probate and Administration Rules.

19. The upshot of the above is that this Court is not vested with the tools to inquire into the transaction that resulted in the transfer of the subject parcel of land from the Deceased to the interested party.

20. The Application dated 28th February 2022 therefore succeeds.

21. Rule 73 of the Probate and Administration Rules empowers this Court to make orders to meet the end of justice. It is desirable that the issue of the administration of the  estate of the deceased be determined. Accordingly, it is hereby directed that the matter be mentioned before the Deputy Registrar on 29th November 2023 to confirm that the Petition is ready for gazettement and to take further directions.

22. Owing to the nature of the Application and parties involved, each party will bear their own costs.