Abdalah Muhamed A Kasinde & 2 others v Antony Ngetich Seurey & another [2015] KEHC 5985 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

SUCCESSION CAUSE NO. 391 OF 2010

IN THE MATTER OF THE ESTATE OF THE LATE CHEBANDE ALIMA (DECEASED)

ABDALAH MUHAMED A. KASINDE.........................................1ST APPLICANT

MOHAMMED ALI....................................................................2ND APPLICANT

MARIAM SALIM......................................................................3RD APPLICANT

VERSUS

ANTONY NGETICH SEUREY...............................................1ST RESPONDENT

JOSHUA MZEE KITION......................................................2ND RESPONDENT

RULING

Abdalah Muhamed A. Kasinde, Mohammed Ali and Mariam Salim hereinafter called the Applicants have applied to this court, by their summons dated the 5th August 2013, that the Grant of Letters of Administration issued to Antony Seurey and Joshua Mzee Kition (hereunder called the Respondents), on the 3/11/2010 and confirmed on the 15th June, 2012 be revoked.

The Applicants also sought for an order that pending the hearing and determination of this application, and determination of this application, the Respondents by themselves, their agents, servants, employees or others whosoever be restrained from taking possession of, entering, selling, leasing out, transferring, charging or in any other manner dealing with the properties herein.  The properties in dispute and as described in the Certificate of Confirmation of grant made by this court on the 15th June 2012 to Antony Ngetich Seurey are Nakuru Municipality/Block 13/314, Nakuru Municipality/Block 13/320, Nakuru Municipality/Block 13/321.

On the 18th October, 2013 the court issued restraining orders against the Respondents in terms of prayer No. 2 of the application. The said restraining orders are in place, and a further order directed that the application under review be heard through viva voce evidence.

Though served, the Respondents opted not to file their responses to the application nor attend court during the hearing of the application on the 23rd October, 2014.

The First Applicant Abdalla Muhamed A. Kasinde in his evidence stated that he is the owner of plot Nakuru Municipality/Block 13/314 having bought it from one Miriam Cheruto Boit in 1992 and produced a sale agreement to that effect dated the 9th December, 1992 and has built 12 rental houses and lives therein since 1992, peacefully up to 2007 when the 1st Respondent came claiming ownership, and once again in 2013 when he attempted to get his tenants pay rent to his agents.  He then filed a suit against the 1st Respondent in the Environment and Land Court, vide High Court ELC Case No. 453 of 2013 at Nakuru which case is pending hearing before the said court.   The 1st Applicant further stated that his name was entered in the Municipal Council of Nakuru register and has been paying rates since 1992.   He therefore prays that this property be removed from the schedule of assets in the Confirmed Grant of Letters of Administration issued to the 1st Respondent as the property having been sold to him in 1992 is not available for distribution.

The Second Applicant Mohammed Ali in his evidence claimed ownership to Plot No. Nakuru Municipality Block 3/320 and too prays that the property ought to be removed from the schedule of properties in the grant issued to the 1st Respondent.

It is his statement that he inherited the plot from his late father who   died in 1954 and has since been paying rates to the Municipal Council from 1982 after he was given an allotment letter and that he is waiting to be issued  with a title deed as survey has been    undertaken.

7.  The Third Applicant Mariam Salim was represented in court by her  daughter Aisha Said Abdul through a Power of Attorney.    A similar   story was told that the said Mariam Salim bought the plot Nakuru   Municipality/Block 13/321 in 1976, built and has settled therein with   her 20 tenants who pay rent to her. She too pays rates in her name  to the Municipal Council, and says she does not know the  Respondents.  She too prays that this property should be removed   from the list of properties in the Confirmed Grant of Letters of  Administration issued to the First   Respondent as she is the rightful    owner.

8.  The Applicants' witness one Osman Mathorube Mutua told the court  that he knows all the parties herein including the 1st Respondent and his parents who used to live at Bondeni – in their own plot (not the  ones in dispute), but left only to come back to claim that the disputed plots belong to him.  He confirmed that the Applicants are the rightful  owners of the plots and that the 1st Respondent was never the owner of the said plots, as the parents of the 1st Respondent sold their plot.

9.  As stated above, the dispute as to ownership of the subject plots is  pending hearing and determination in the ELC court vide ELC Case   No. 453 of 2013   filed by the 1st Applicant.   I have looked at the pleadings in the said ELC case as filed by the applicants and the 1st Respondent who is the 1st Defendant therein. The same issues as to ownership are raised and same prayers sought, supported by the same    documentation filed in these objection proceedings.

10.  I have considered the evidence tendered by all the Applicants and   their witness.  The Respondents did not participate in these  proceedings.  I have considered that the plots in issue belonged to one  Alima Chebande   deceased in 1985, and in whose estate these    proceedings relate.

In the letter by the Chief of Barut Location, Nakuru and dated 21st August, 2008, the Chief confirmed that the deceased Halima Nasoor  (Chebande) was survived by Antony Seurey and Joshua Mzee Kition,  described as grand children.

Thereafter, the two applied for Grant of Letters of Administration in   respect of the estate (these proceedings)in Form P & A 5, the inventory  of assets were shown, and it included the three plots under dispute. This was January 2010.

11.  By a letter from the Municipal Council of Nakuru dated the 10th    August 2006, ownership of the three plots is shown as -

Nakuru Municipality/Block 13/314– Halim Noor, P.O. Box   10358 Nakuru

Nakuru Municipality/Block 320– Mariam Salim – P. O. Box  627, Nakuru

Nakuru Municipality/Block 13/321 – Public Trustee, Box   49672, Nairobi

12.  According to the Applicants, they bought the plots from one Miriam  Cheruto Boit allegedly the administrator of the estate of the late Alima  Nasoor Chebande (1st Applicant) in 1992.  While the 2nd Applicant    says he inherited the same from his late father and has an allotment   letter from   the Council.  The 3rd Applicant says that she also bought   the plot in 1976,   and has since built rental houses.

It also appears that there was another Grant of Letters of Administration  in  respect  of  the  estate of Hadija Binti Malike being P & A No. 341 of 1975 whereof one Miriam Cheruto Boit was the administrator, and the sole beneficiary of Plot No. Nakuru  Municipality/Block 13/1314.

According to the 1st Respondents averments he never knew of the former applications for grant in respect of his mothers estate, and he then proceed to apply for the grant of representation in this cause.

13. From the above, it is evident that there was some allegations of  misrepresentation and or fraud involved, and the issue of the earlier  grant in respect of the same properties by the said Miriam Cheruto Boit. The Applicants were bona fide purchasers of the plots as  confirmed by the executed sale agreements, and their prayers to have  the three plots removed from the schedule of assets in the confirmed  grant issued to the 1st respondent on the 15th June, 2012 appears   genuine.

14.  The upshot of the above is that I find the application merited and   grant the prayers sought, in the following terms:

That the confirmed grant of letters of administration in respect of the estate of the late Chebande Alima (deceased) issued on the 12th June 2012 to Antony Seurey  and Joshua Mzee Kition is hereby revoked.

That the Respondents by themselves, their agents, servants, employees or whomsoever are restrained from taking possession of, entering into, selling, leasing out, transferring or in any other way or manner dealing with  the properties Nakuru Municipality Block 13/314, 320 and 321 pending the hearing and determination of Nakuru  High Court ELC case No. 354 of 2013.

That costs of this application be costs in the cause.

Dated, signed and delivered at Nakuru this 27th day of February, 2015

JANET MULWA

JUDGE

Ruling read and signed in open court in the presence of:

Ms Omwenyo - For Applicants

N/A - For Respondents

Court clerk -   Mwai