Sesi v Public Trustee

of Mohamed Bilali which estate is under its administration following the court order issued on 7th October, 2009 and armed by the ruling delivered on 12th May, 2022 in Succession Cause No. 111 of 2007 as consolidated with Succession Cause No. 66 of 1998 of the High Court in Machakos. 5. The defendant averred that a similar matter is ongoing in the succession cause before the Machakos High Court seeking similar reliefs. That despite the grants in the two causes having been conrmed, the High Court is yet to establish the identity of the deceased and the beneciaries of the said estate. Further, that the sale agreement attached to the plaint refers to sale of Plot No. 872D Pumwani as opposed to LR No. 36VII581 Plot No. B72 (D) Pumwani Redevelopment Estate. 6. The defendant further averred that the conrmation of grant is overtaken by events by the court order issued on 16th December, 2009 and the ruling delivered on 12th May, 2022. In conclusion, it was averred that the suit is misconceived and an abuse of the court process since a similar matter is ongoing in the Machakos High Court. 7. The plainti led his reply to the defence dated 24th May, 2023. He averred that there is no petition that is pending in respect to the estate of the deceased, and that the petitioners in Succession Cause No. 111 of 2007 withdrew their claim vide an adavit sworn by the petitioners. Further, that the allegation that another succession cause is pending is an afterthought and a delaying tactic as Succession Cause No. 66 of 1998 was concluded and the grant conrmed. He averred that the grant is valid to date and it has never been challenged before any court of law. 8. The plainti’s case proceeded for hearing on 23rd July, 2025. The plainti, PW1 stated that he is a business man residing in Tala, Kangundo. He adopted his witness statement dated 11th March, 2025 as his evidence in chief, and produced the list of documents dated 14th February, 2023 as P. Exhibits Nos. 1 to 12 respectively, and the list of documents dated 11th March, 2025 as P. Exhibits Nos. 13 to 21 respectively. 9. On cross-examination, PW1 informed the court that he purchased the suit property from the family of the late Bilali, and that while plot number reads B72D Pumwani Estate, the said property is plot no. 872D, Pumwani Estate. He further stated that a certicate of conrmation of grant was issued by the court on 21st July, 2000, and that the said schedule has the name of Mwawawa. He agreed that the sale agreement was between himself and Mwawawa Mohamed of P.O. Box 107 Tala. 10. He identied the second agreement dated 18th May, 1995 between himself and Mwawawa Mohamed and the adavit sworn by Mwawawa Mohamed on 13th April, 1999. He stated that the city council approved the transfer of property to him on 14th March, 2001 with the subject letter of the plot being no. B72D Pumwani Estate account number 31014. 11. With regard to the succession, PW1 stated that he was not aware that Succession No. 68 of 1998 and Petition No. 111 of 2007 had been consolidated as he was not a party to the two cases. Neither was he aware of the ruling that was delivered in respect of the two cases. 12. On re-examination, PW1 testied that he entered into a sale agreement with Mwawawa Mohamed, but he knew the person as Mwanahawa. He stated that the property that is the subject of this suit is B72D, Pumwani Estate, and that the number 87 is a clerical error. With the testimony of PW1, the plainti rested his case. 13. Farouk Mungai (DW1) adopted his witness statement dated 7th February, 2025 as his evidence in chief. He produced the documents contained in the list of documents dated 1st March, 2023 as D. Exhibits Nos. 1 to 7 respectively. Further, he stated that he is aware of the Succession Cause No. 66 of 1998 https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18407/eng@2025-12-18 2

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and Petition No. 111 of 2007 which are still pending in court. He further stated that there was a ruling delivered in court on 12th May, 2022. 14. DW1 further testied that the plainti is an interested party in the succession cause, and that the court could not determine the real beneciary in both cases. He stated that the court directed that the matter be investigated by the DCI. 15. On cross-examination, DW1 testied that he did not have the outcome of the investigations by the DCI, and the orders directing so. With regard to Succession Cause No. 66 of 1998 and Petition No. 111 of 2007, DW1 testied that there is a conrmation of grant in Petition No. 111 of 2007, but the same is not in their bundle of documents. He stated that he has seen the conrmation of grant in Succession Cause No. 66 of 1998. Interestingly, DW1 was not an employee of the defendant, neither is he a son of Mohamed Bilali, nor is he the petitioner in the Succession Cause No. 66 of 1998, and Petition No. 111 of 2007. He also did not have a letter from the chief to indicate his relationship with the deceased. 16. DW1 further stated that he is aware that Asha Swaleh withdrew from the petition, however, Salim Kiprono remained in the petition but he did not know if Salim Kiprono was aware of this suit. DW1 did not have a list of beneciaries, and he informed the court that his interest in the matter is the preservation of the estate, as he is married to the niece of Mohamed Bilali, and thus assisting the real beneciaries. He further informed the court that he was aware of the application by the defendant requesting the DCI to help in identify the whereabouts of the beneciaries of the estate for the reason that Asha Swaleh and Salim Kiprono tried to steal the property from the genuine beneciaries. 17. In re-examination, DW1 testied that in the ruling delivered on 12th May 2022, the court could not identify the correct person of the deceased and the true beneciaries of the estate. 18. With the testimony of DW1, the defendant rested its case. The parties led their respective submissions. The plainti led his written submissions dated 6th August, 2025. The defendant led its written submissions undated on 19th September, 2025. 19. I have considered the pleadings, the testimonies of the witnesses, the evidence tendered and the written submissions led by both parties. The issue for determination is whether the suit has merit. 20. I have carefully perused the documentary evidence relied on by the parties in this matter. The plainti contended that he purchased the suit property from the lawful beneciaries of the estate of the late Bilali through an agreement of sale. He stated that he has been paying rates, and while he was not aware that the court had placed the suit property in the administration of the defendant, a valid certicate of conrmation of grant dated 21st July, 2000 was issued, and he was asked to approach this court for the necessary orders. 21. The plainti produced a copy of the certicate of conrmation of grant dated 21st July, 2000 wherein the suit property was allocated to Mwawawa Mohamed. Further, he produced a copy of the agreement dated 13th May, 1995 between himself and Mwawawa Mohamed with regard to four listed properties i.e. the suit property which reads as Plot No. 872D Pumwani Estate, MatunguluKyaume 1620, KawatheiMulingana 164 and KatineManza 136. The plainti further provided copies of receipts of payments to the City Council of Nairobi, and letters from the council approving his transfer of ownership of the said property. Succession cause no. 111 of 2007 was further led with regards to the estate of the deceased. The petitioners in that case swore adavits deponing that they were misinformed and led to state that they were beneciaries of the said estate, with the intention to defraud them. The testimony of PW1 was substantiated by the production of these documents. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18407/eng@2025-12-18 3

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22. On the other hand, the defendant argued that the certicate of conrmation of grant was overtaken by events vide the ruling of the court delivered on 12th May, 2022. The defendant further casted doubt as to the registration of the suit property referring the same to LR No. 36VII 581 Plot No. B72(D) which is dierent from what is claimed by the Plainti. However, the defendant’s witness did little to help with the defence to the extent that he had no interest or claim in the suit property, and neither was his relationship with the said estate proved. In my view, his participation in this suit is suspect, and with no probative value at all. 23. DW1 produced a copy of the orders of the court issued on 7th October, 2009 in Succession Cause No. 111 of 2007, the ruling of the court delivered on 12th May, 2022. I have read the said ruling and I nd it necessary to reproduce the following paragraphs:“ 1. This cause revolves around property described as Plot No 36VII5XX Flat b72d Pumwani Redevelopment the ‘suit property’ listed as a property of the deceased in this instant cause and in P & A Cause No 66 of 1998. In both causes the grants were conrmed on dierent dates. 2. What is intriguing in the two succession causes is that the deceased names are not the same. In this cause, the deceased is Mohamed Bilali while in P & A No 66 of 1998 the deceased is Mohamed Ndolo alias Mohamed Bilali alias Mzee Mohamed. Death certicates dier as follows; the cause of death is dierent and the date of demise is dierent. In this cause, the deceased death occurred on September 15, 1978 while in P & A No 66 of 1998 death occurred on 20th October, 1988. The cause of death in this Cause was shortness of breath and swelling of legs while in P & A No 66 of 1998 the cause was a head injury. …………………………………………………………………………. 46. The court record conrms that the same issue was ventilated before hon DK. Kemei J vide rulings delivered on January 23, 2020 and September 21, 2020 as follows:-“Ruling of January 23, 2020“It is my considered view that the parties herein should be given an opportunity to present their rival claims via viva voce evidence so as to enable the court to establish the genuine persons to administer the estate and also to establish whether there are any creditors to the estate.” Ruling of September 21, 2020“It is also not in dispute that this court on the December 16, 2009 ordered that the estate herein be administered by the Public Trustee pending further orders in a bid to safeguard the estate as the court dealt with the rival claims placed before it” 47. The administration of the estate had been vested and remain in the Public Trustee on December 16, 2009 and shall be vested in the Public Trustee. 48. It follows that 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 beneciaries 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 https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18407/eng@2025-12-18 4

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who are in the nearest degree of consanguinity up to and including the sixth degree. 49. In this case PW1, PW2 and PW3 stated that the only surviving child of Mohamed Bilali may be Zuhura Mohamed who resides in Shimba Hills but cannot be traced. It is not in dispute that Yusuf Mohamed is the son of Zuhura Mohamed. According to PW2, the deceased wife was Mwendwa Ngira but PW2 has not informed court on the whether she is alive or dead. PW1 stated that her mother Fatuma Hamisi died in 1997. According to P & A No. 66 of 1998, Mwawawa Mohamed who PW1 stated was the wife of the deceased Mohamed Bilali died. Disposition a. In the premises, the court nds that from evidence on record, Mohamed Bilali, Mohamed Ndolo and Mzee Mohamed are not conclusively determined to be one and the same person with dierent names or are dierent persons. b. Administrators are appointed from beneciaries of the deceased’s estate in the ensuing circumstances the beneciaries are not determined at this stage. Therefore, the Public Trustee is appointed administrator of the estate (s) andor remains administrator in both matters and may le any relevant application to aid determination of the deceased and beneciaries.” 24. From the above ruling, it is clear that the High Court needed to ascertain the administrators and beneciaries of the estate to enable it properly administer the said estate. The court further recognized that there were grants conrmed in the two causes, and that there was need to identify the deceased. In paragraphs 47 of the ruling, the court directed that the estate to remain vested in the defendant. I believe this order was made in good faith and to ensure that the estate is not wasted. 25. Being an interested party in the consolidated matters before the High Court in Machakos, the plainti knew very well of the existence of these orders, and instead sought to circumvent the same by ling the plaint. If say for example that the court was to determine the ownership of the suit property. What would be left of the succession proceedings? The suit property having been owned by the late Mohamed Bilali who died intestate, it only follows that the estate of the deceased is administered in accordance with the law. Let me also state that the documents produced by the plainti were not controverted by the defendant, and neither was evidence adduced to the contrary that the plainti did not purchase the suit property from Mwawawa. His claim as against the said estate is still intact, and can be litigated upon determination of the consolidated succession causes before the High Court. 26. Having said the above, this court will refrain from determining the present dispute to avoid any potential conicting decision arising from therefrom. The plaint dated 14th February, 2023 is hereby dismissed. Each party to bear its own costs. Orders accordingly. DATED, SIGNED & DELIVERED VIRTUALLY THIS 18TH DAY OF DECEMBER, 2025. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18407/eng@2025-12-18 5

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HON. MBOGO C.G. JUDGE 18122025. In the presence of: Mr. Benson Agunga - Court assistant Mr. Tamata for the Plainti No appearance for the Defendant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18407/eng@2025-12-18 6

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