1. What’s before this court is Summons for Rectification of grant dated 20th December 2022 and filed on 3rd January 2023, seeking the following orders:
a) That the grant for special purpose issued to Dalal Jamal Hassan and Nargis Akasha be rectified;
b) That Abdusalaam Abusoda be included as an administrator of the estate;
c) That the administrator by the name Nargis Akasha be removed as an administrator; and
d) That costs be provided for.
2. The summons is premised on the grounds therein stated and also on the supporting affidavit of Abdulsalaam Abusoda sworn on 20th December 2022 and filed on 3rd January 2023. His claim is that he is a son of the deceased herein. That a grant was issued to Nargis Akasha and Dalal Juma Hassan. The same was confirmed on 22nd April 2009. That at the time the succession proceedings were filed he and his siblings were minors and thus their aunt, Nargis Akasha, was appointed as a co-administrator to the estate of the deceased. That they are now of the age of majority and can represent themselves.
3. He further stated that despite being fully aware of these proceedings Dalal Juma Hassan went ahead and filed Succession Cause No.77 of 2018 before the Kadhi’s Court where adverse orders were given against him. That relying on the ruling of the Kadhi the said Dalal Juma Hassan has locked that Applicant and his children from the deceased properties. That she has since sold all the household goods, in particular the furniture.
4. He deposed that the two administrators have caused the sale of Plot No.6289/6290 without the consent of the beneficiaries which action has made them to be sued in ELC Case No.210 of 2021.
5. He sought to be added as a beneficiary to safeguard his interest and that of his children.
6. In response Kamal Kamaldin Akasha one of the beneficiaries of the estate filed a Replying Affidavit on 27th March 2023 and stated that the applicant illegally treats and controls the estate of the deceased as his own property excluding the other beneficiaries.
7. Further that the allegation that Dalal Juma Hassan has locked other beneficiaries from enjoying rent accruing from the deceased’s property is unfounded, scandalous and vexatious thus should be disregarded. That the applicant once disposed of the deceased’s jewellery worth over US dollars 7000 and spent all the resultant money on luxurious items.
8. He stated that the applicant is not fit, trustworthy and reliable person to be an administrator and urged the court to dismiss the application with costs.
9. Nargis Akasha one of the administrators also filed a replying affidavit sworn on 25th March 2023 and filed on 28th March 2023 in which she stated that she is not a party to Kadhi’s Succession No.77 Of 2018.
10. She further stated that together with the other administrator they sold Plot No.6289 /6290 with the consent of all beneficiaries including the applicant. That due to the pending case ELC Mombasa No. 210 of 2021 the administration of the said plot has not been concluded.
11. On 29th March 2023 the court directed that the summons be canvassed by way of written submissions. All parties complied with the said orders.
12. The applicant through his advocate Manguro Onyango & Co. Advocates filed his written submissions dated 4th May 2023, and submitted on one issue for determination namely; whether the applicant has made a case to warrant the court to issue the orders sought herein.
13. Counsel submitted the applicant’s claim is that the administrators herein have not undertaken the administration of the estate of the deceased diligently as provided for under Section 83 of the Law of Succession Act. That as a result they have suffered immensely.
14. Counsel relied on Sections 66 and 74 of the Law of Succession Act and submitted that the court is clothed with discretionary power in relation to addition of an administrator. Counsel relied on Succession Cause No. 82 of 1989; In the Matter of The Estate of Tauruchui Marete (Deceased). He urged the court to allow the said Summons.
15. Kamal Kamaldin Akasha Abdalla through his advocate M. A. Mwinyi Advocate filed his written submissions dated 18th April 2023 and submitted on one issue for determination; whether the applicant Abdusalaam Abusoda is fit to be an administrator of the deceased’s estate.
16. Counsel reiterated the respondent’s position in his affidavit and submitted that the applicant did not produce any evidence that any of the current administrators have committed any fraudulent act or impropriety against the deceased’s estate. That the applicant is a divisive figure in the family. That his conduct renders him untrustworthy to administer the deceased’s estate. Counsel urged the court to dismiss the application with costs.
17. Nargis Akasha also filed her written submissions dated 10th May 2023 through her advocates Prime Lawyers LLP. Counsel reiterated her position in the replying affidavit and submitted she associates herself with the submissions of Kamal Kamaldin Akasha on the behaviour of the applicant and that it would be a mistake to handover administration to him.
18. I have considered the summons, the responses therein and rival submissions by advocates representing parties. In my opinion the issues that arise for determination are as follows:-
a) whether the applicant should be made an administrator; and
b) whether to remove Nargis Akasha as an administrator of the estate of the deceased.
19. The summons herein is for rectification of grant. Section 74 of the Law of Succession Act provides:-
“Errors in names and descriptions, or in setting out the time and place of the deceased's death, or the purpose in a limited grant, may be rectified by the court, and the grant of representation, whether before or after confirmation, may be altered and amended accordingly.”
Rule 43 (1) of the Probate and Administration Rules provides that:-
“Where the holder of a grant seeks pursuant to the provisions of section 74 of the Act rectification of an error in the grant as to the names or descriptions of any person or thing or as to the time or place of the death of the deceased or, in the case of a limited grant, the purpose for which the grant was made, he shall apply by summons in Form 110 for such rectification through the registry and in the cause in which the grant was issued.”
20. This court in its orders of 2nd February 2023 allowed prayer no.1 thus the said prayer is already spent.
21. On whether the applicant should be added as an administrator, the respondents herein objected to the same on grounds of his behaviour.
22. Section 66 of the Law of Succession Act provides:-
“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—
(a) surviving 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 by Part V;
(c) the Public Trustee; and
(d) creditors: Provided that, where there is partial intestacy, letters of administration in respect of the intestate estate shall be granted to any executor or executors who prove the will.”
23. Further the court in the case of In re Estate of George Ragui Karanja (Deceased) [2016] eKLR stated:-
“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.”
24. The applicant hasn’t made out a case for his addition as an administrator of the estate in a manner that would convince this Court. From the depositions before the Court it would appear that there is clear and present apprehension on the part of most beneficiaries that the administration of the estate may be made difficult if the applicant becomes a co-administrator. Given the age of the matter I am not inclined to exercise my discretion in favour of a party who might make the administration of the estate of the deceased any more protracted than it already is. The upshot of this is that I decline to allow the said prayer.
25. On whether Nargis Akasha should be removed as an administrator, the applicant’s argument is that Dalal Juma Hassan has locked him and his children from the deceased properties. That she has sold out all household goods. That the two administrators have caused the sale of Plot No.6289/6290 without the consent of the beneficiaries resulting in ELC Case No. 210 of 2021. I have considered the said prayer. Just as with the previous prayer I am not convinced that the Applicant has made a case that would warrant issuance of the orders sought. I therefore decline to issue the same.
26. The upshot of the foregoing is that it is my finding that the application herein lacks merit and the same is hereby dismissed with no orders as to costs.
Orders accordingly.
Dated, signed and delivered at Nairobi this 1st day of September 2023 via Microsoft TEAMS
In the presence of:-
No appearance for Abdulsalaam Abusoda;
No appearance for Kamal Kamaldin Akasha;
No appearance for Nargis Akasha; and
Mr. Arthur Ranyondo – Court Assistant.