High Court 1051 of 2015

Administrator to continue with 2 others to be appointed • Ali Bwana 2. Sofia Khator Administrator to proceed withAdministrator to continue alone administration of Estate to full • Saumu Mohamed distribution Khamis 3. Fatuma Khator ” Administrator to proceed alone • Ismael Mohamed 4. Mwanaisha Khator ” Administrator to proceed alone • Mariam Mohamed 5. Radhiya Khator ” Administrator to proceed alone • Amina Ali 6. Fatuma Khator • Abdulhamad Muhiddin 7. Kibibi Khator • Zazra Shaban ” Administrator to proceed alone Two additional administrators to be appointed Additional Administrators 8. Mwanana Administrator to proceed alone Administrator to proceed alone • Amali Ali 9. Mohamed Khator ” Administrator to proceed alone • Mariam Mohamed 10.Abdulrahman Khator ” Administrator to proceed alone • Rishard Rahman Abdul 11.Said Khator ” Administrator to proceed alone • Hatswa Said 12.Rashid Khator • Harun Rashid 13.Ali Khator Administrator to proceed as he isAdditional administrators experienced but co-administrators to be appointed Administrator to proceed but to be(1/2) Half Vote for each proposition for given co-administrators – HashimAdministrator to proceed alone or with

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• Abdillahi Ali • Ahmed Ali 14.Ahmad Khator • Hashim Ahmad and Nazra co-administrators – Administrator to proceed alone [Vote ½:½] Administrator to proceed with coadministrators Additional administrators 15.Khamis Khator Administrator to proceed alone • Rehema Mohamed Khamis Administrator to proceed alone 16.Khalifa Khator Administrator to proceed alone Administrator to proceed alone • Zeinab Khalifa Notes: 1. All the 16 beneficiaries were represented. All beneficiaries except 1 (Mwanana Khator) are deceased and their interests were represented by members of their households. 2. Two beneficiaries had their households represented by two persons and their views were recorded separately. 3. Where the two members of one household voted in opposite sides, the result weighted their respective contribution as one half of a vote. 4. Where a member proposed a named administrator or administrators to be appointed to join the current administrator the court recorded such proposed additional administrator(s).” OUTCOME OF THE CONFERENCING 4. Votes for the present Administrator to proceed with the administration of the Estate alone were 11½ (72%). Votes for the Administrator to be joined by co-administrators were 4½ (28%). Votes for removal of the administrator – Nil (0%). 5. The outcome of the conference came out as the respective strength in numbers of representatives of beneficiaries who supported the present administrator and therefore took the view that he should proceed with the administration of the Estate alone to full distribution of the Estate as against those who did not support him, or who supported him, and wished that other person(s) be appointed to join him in the administration of the Estate. There was no voice for the removal of the present administrator and his replacement with complete new administrator(s) as most representative who addressed this aspect deferred to his ‘experience’ in estate management. Referral of the Estate to administration of the Public Trustee though alluded to in passing by the Court was not seriously considered by the representatives. It was clear that a majority of representatives of beneficiaries supported the present administrator, without his being joined by other administrators; representatives supported the present administrator and joined by other administrators. 6. As regards the proposed additional administrators, Nazra Seiban, Harun Rashid and Hashim Ahmad were put forward. Nazra and Hashim work and reside in Mombasa while Harun works and resides in Nairobi. On inquiry by the Court, at the kind prompting of the Counsel for the Administrator - pursuant to section 56 of the Law of Succession Act - there were no concerns as to the suitability of the proposed persons to serve as administrators: all were adult persons of means, in employment or self-employment, and none was an un-discharged bankrupt or person of unsound mind or suffering a debilitating physical or other infirmity. In all the permutations presented to court as to desirable proposed administrators in the event that the court appointed less than the three proposed, Nazra Seiban was a common denominator, accompanied by one or the other or both proposed additional administrators.

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7. The concerns of those who spoke in favour of additional administrators was alleged lack of consultation and communication on the affairs of the Estate where the present administrator was alleged to dispose of estate property, without consent of, or consulting, the beneficiaries and thereafter paying them what they considered were meagre amounts out of the huge proceeds of sale. It appeared that the whole dispute between the parties centred, in addition to distribution of the Estate, on a question of transparency and accountability in administration. FINDINGS OF THE COURT 8. The court takes the view that the dispute between the parties in this Succession Cause may be narrowed by an order for redressing the peripheral issue of administrator(s) to free the minds and energies of the parties towards the final distribution of the Estate of the Deceased herein and thereby bring to a conclusion the more than half-century old succession proceedings. I consider that upon the conferencing with the parties the court is in a position consistently with power to make grants under section 53 of the Law of Succession Act and the inherent powers of the court rule 73 of the Probate and Administration Rules to make orders and directions in that regard. 9. Although the consultation with the parties at the conferencing did not result in a majority for appointment of additional administrators, the court considers that there was a significant proportion of the beneficiaries at 28%, close to a third of the beneficiaries, who felt prejudiced by the lack of consultation and communication and accountability with regard to the administration of the Estate by the lone administrator. The appointment of administrator is a matter of judicial and equitable consideration, rather than democratic ‘tyranny of numbers’ determination. 10. With respect to administrator who felt no need to appoint other administrators ‘because the estate was not big’, it is not the size of the estate that calls for the more than one administrator but rather the size of the beneficiaries and their likely divergence in interest and viewpoints and or the nature of estate, as where there are continuing trusts, see section 58 of the Law of Succession Act. 11. The Court takes the view that in ordinary course of things where there are 16 beneficiaries of a no doubt substantial, if not big, an Estate there is likely to be disagreements on the mode and shares of distribution or even the mere administration of the estate. Where, in addition, some of those beneficiaries fear a violation of their interests in the Estate and their right to account by an administrator in the course of administration under section 83 of the Law of Succession Act, the court is justified to consider a more equitable representation in the administration of the Estate. 12. Accordingly, despite the democratic outcome of the conferencing described above, the court takes note of the considerable concern on representation of some of the beneficiaries and in seeking to redress the situation considers that the appointment of additional representatives to the Estate administration is necessary. By analogy in cases of continuing trusts, the court will on its own motion consequent upon the conferencing consider the issue of appointment of additional administrators. Section 58 (2) on continuing trusts provides – “58. (2) Where an application for a grant of letters of administration in respect of an intestate estate is made by one person alone and a continuing trust arises the court shall, subject to section 66, appoint as administrators the applicant and not less than one or more than three persons as proposed by the applicant which failing as chosen by the court of its own motion.” 13. In determining the number of persons to join the present administrator, and having seen and heard the beneficiaries, I consider that while there is need to make an order for additional representation, there is a danger that in introducing a majority of persons as administrators will create divisions and slow down administration in cases of likely disagreements with the present administrator, and should the majority incomers decide to act by majority vote escalate the disagreements and ‘misunderstandings’ and, consequently, delay the eventual administration and distribution of the estate. On the other hand, a single additional administrator will while addressing the concern of want of consultation, communication and

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accountability felt by some of the beneficiaries also create circumstances where the decisions of the administration must be made by consensus, which will result from consultation with the 16 beneficiaries whom the two administrators will represent. That is a worthy outcome of the conferencing. 14. Accordingly, the Court finds that the appointment of one additional administrator to work with the present administrator will meet the justice of the case. As a common denominator in the proposals put forward by the beneficiaries, Ms. Nazra Said Seiban appeared to command the respect of the beneficiaries who wished to have additional representatives. Through her, their legitimate concerns of lack of consultation communication and accountability will, going forward, be redressed. DIRECTIONS AND ORDERS 15. The Court makes an order that Ms. Nazra Said Seiban and the present administrator Abdulrazak Khalifa be appointed co-administrators of the Estate of the deceased Khator Bin Salim with effect from the 1st August 2015. FURTHER DIRECTIONS 16. As this court is proceeding on transfer effective 1st September 2015 and this Cause is set for hearing on the 9th September 2015 - no doubt before another court, I do not consider it convenient to give any further directions as to the hearing of the dispute herein as such directions, given by this court before handing over the matter to the in-coming court, may unduly (and even appear to disrespectfully) hamstring the in-coming court which will eventually hear and determine the dispute on its merits. I consider it appropriate that the in-coming court determines the further directions to be given for the hearing of the pending applications in this Cause. 17. Costs in the Cause. EDWARD M. MURIITHI JUDGE DATED AND DELIVERED THIS 31ST DAY OF JULY 2015. ……………………………………………………….. JUDGE In the presence of: ……………………………............................. for the Applicant ………………............................................. for the Respondent/Administrator ........................................................................ Court Assistant.

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