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KadhiPartially AllowedSuccession Cause (Summons dated March 9, 2022)· [2022] KEKC 4 (KLR)

In re Estate of Mehdi Haiderali Khimji (Deceased) (Succession Cause 53 of 2016) (Family) [2022] KEKC 4 (KLR)

Kadhi's Court
20 June 2022
AAABDULHALIM H. ATHMAN
1,809 words in judgment
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The bottom line

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A Kenyan Kadhi's Court kept the family's chosen executor in charge but ordered him to fully account for the estate within 90 days.

What this practically means

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Executive summary

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The applicant, a son and beneficiary of the estate of the late Mehdi Haiderali Khimji (who died testate on March 14, 2014), sought revocation of the appointment of the respondent, Murtaza A. Somji, as administrator/executor of the estate under a will confirmed by court order of March 9, 2017. He alleged the administrator intended to distribute the estate contrary to the will, misled the court by omitting property LR. No. 209/152/2/1/5 from the grant application, delayed distribution for his own benefit, demanded an unjustified stipend, and failed to render inventories and accounts, invoking sections 76 and 83 of the Law of Succession Act. The respondent countered that he was the executor named in the will, had administered the estate lawfully, that the disputed property appeared in the will, and that the applicant's own intermeddling and failure to account for rents collected had hampered administration. The other four heirs swore in support of the administrator. The court, per Senior Principal Kadhi Abdulhalim H. Athman, found no evidence of lack of diligence or misappropriation, held that the other heirs supported the administrator, and that a dispute over the extent of the estate's interest in one property was curable through review or correction of the list of properties. The court reaffirmed its discretion under section 76 and declined to revoke the grant. The only prayer allowed was for accounts: the administrator was ordered to render accounts within ninety days, with liberty to sue persons hindering him. All other prayers were dismissed, with each party bearing its own costs.

Key legal issues

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01

Revocation of grant under section 76 of the Law of Succession Act

Holding

The application for revocation failed; no defect, fraud, concealment or lack of diligence was proved, and the dispute over one property was curable by review or correction of the list of properties

Reasoning

The administrator was a close friend chosen by the deceased as executor and his position was confirmed by the court. The applicant, one of five heirs, did not demonstrate lack of diligence or misappropriation; the other heirs confirmed the administrator had done a good job. A dispute over the extent of the estate's share in one property is not sufficient to warrant revocation and can be cured through review or correction of the list of properties.

p. 4
02

Raising fresh issues at the submissions stage

Holding

A property (LR. No 1870/VI/131) not specifically pleaded could not be raised at the submission stage

Reasoning

The applicant first cited the property in submissions rather than in his application. Parties are bound by their pleadings and fresh unpleaded issues cannot be introduced at the submissions stage. The court nonetheless noted the property appears in the will's list of properties and is in the joint names of the deceased and his wife.

p. 4
03

Duty to render accounts

Holding

The administrator was ordered to render accounts within ninety days

Reasoning

Although the applicant is entitled to request accounts and the respondent blamed the applicant's meddling for his failure to render accounts, these were claims and counterclaims not sufficiently canvassed by affidavit evidence. The obligation to render accounts rests on the administrator as the person charged by the court, and he was given ninety days to comply, with liberty to sue anyone hindering him.

p. 4

Legal principles established

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  • Under section 76 the court has discretionary power in revocation applications and is not bound to revoke even where section 76 grounds are established
  • Parties are bound by their pleadings; fresh issues cannot be raised at the submissions stage
  • The wishes of a deceased Muslim must be held in the highest regard as long as they are not repugnant to the law

Court orders

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  1. 1.The respondent is directed to render accounts of the administration of the estate within ninety (90) days from the date of delivery of the ruling
  2. 2.The respondent is at liberty to take legal action against any person hindering the discharge of his statutory obligation
  3. 3.Save for the prayer for accounts, the application is dismissed
  4. 4.Each party to bear its own costs

Authorities

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Legislation

  • Law of Succession Act, Cap 160 Laws of KenyaSection 76
  • Law of Succession Act, Cap 160 Laws of KenyaSection 83

Cases cited (3)

  • John Mundia Njoroge & 9 others v. Cecilia Muthoni Njoroge & another
    [2016] eKLR
  • In the matter of the estate of Murathe Mwaria – deceased
  • Kipurgat arap Chepsiror and Others v Kisigut arap Chepsior
Jurisdiction invoked
Sections 76 and 83 of the Law of Succession Act, Cap 160 Laws of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "In re Estate of Mehdi Haiderali Khimji (Deceased) (Succession Cause 53 of 2016)  (Family) [2022] KEKC 4 (KLR)", Case Analysis (2022). Succession Cause (Summons dated March 9, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/kekc/2022/4/eng@2022-06-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.