Khalid Salim Naaman & 1 other v Hussein Salim Naaman

ANDERSON KATANA ........................................................... INTERESTED PARTY NYALE CHIPA ......................................................................... INTERESTED PARTY JACQUELINE ALLEMAN MUTUNGA ................................ INTERESTED PARTY RULING 1. Before this court is summons dated 20th December 2023, vide which the applicants seek the following orders: a. Spent; b. That there be an order of injunction against Hussein Salim Naaman, Nicholas Katumo Peter, and Abdulhakim Salim Twahir from dealing with the properties of the deceased, being Plot No. 938/III/MN at Mtwapa, Plot No. 944/III/MN at Mtwapa, Plot No. 487/III/MN at Mtwapa, Plot No. 3241/III/MN (CR No 29412), Plot No. 3242/111/MN (CR No. 29413), Plot No. 3243/111/MN (CR 29414), Plot No. 3245/111/MN (CR No 29415), Plot No. 3245/111/MN (CR No.29416), Plot No.539 /111/MN, Plot No. 936/111/MN, Plot No. 933/111/MN, Sub Division No.4014 (Original No. 539 /179) Section III/MN CR No. 11712 (Original No 539/R) Section III/MN at Mtwapa pending hearing and determination of this application and the orders be served upon the lands office where the plots are registered. c. That Hussein Salim Naaman do account for all the subdivisions created from Plot No.5 39/ III/MN before and after the death of Moza Toban; d. That Hussein Salim Naaman do surrender all the titles and documents relating to the properties of the deceased which are in his possession; e. That Hussein Salim Naaman do compensate the estate and/or other beneficiaries of the estate for all the properties he has so far sold without legal authority; f. That the sale of Subdivision Nos 4014 (Or. No. 539/179) Section III/MN and 11712 (Original No. 539/R) Section III/MN be declared null and void and the said titles be cancelled and reissued in the name of the deceased and/or administrators herein; and g. That Hussein Salim Naaman be condemned to pay the costs of this summons. 2. The application is supported by the affidavit of Khalid Salim Naaman, sworn on 20th December 2023, vide which he stated that they were issued with a grant of letters of administration on 14th May 2010, after the demise of his mother on 13th August 2005, and the same was confirmed on 18th July 2013. The properties of the deceased were to be distributed to the beneficiaries in accordance with Islamic Sharia law, as indicated in the certificate. He deposed that the respondent continues to intermeddle with the assets without permission, consent, and involvement of the other beneficiaries. 3. He further stated that the respondent has fraudulently subdivided and sold portions of Plot No.539/ III/MN and also some other plots. The respondent used to help their mother most of the time, including dealing with the plots. They deposed that they were shocked to learn that portions of the plot had been sold without their knowledge, as their mother had never informed them of any such sales. 4. It was stated that the respondent is not willing to discuss the said issues and that some interested parties have charged the plots they had bought from the respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17265/eng@2024-10-04 2

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5. He urged the court to compel the respondent to account for the money received from the illegal, fraudulent sale of portions of Plot No.539/111/MN and from any other plot which belongs to the deceased’s estate. 6. The application was opposed. The Interested Parties filed replying affidavits, vide which they averred that they were purchasers for value and that the transactions were entered into with knowledge of the family members. It was urged that the application was res judicata as a similar matter was pending before the Environment and Land Court in Malindi. 7. The respondent, on his part, accused the applicants of having slept upon having the grant confirmed. He denied that he had intermeddled. He stated that this Court lacked the jurisdiction to hear and determine the matter, arguing that it was functus officio. Although he admitted that he was the goto person in respect of the properties during the lifetime of their mother, he averred that the situation had since changed once their mother died and that the applicants were fully in control. 8. The application was canvassed by way of written submissions. 9. The submissions of the applicant are dated 26th May 2024. It was submitted that only the 1st, 3rd, 10th, and 16th interested parties filed replying affidavits. Counsels for the applicants submitted that the Respondent had no authority to deal with the estate of the deceased, as he wasn’t the administrator. By dealing with the estate, he had therefore intermeddled. It was submitted that this Court has jurisdiction to issue the orders sought. Counsel therefore prayed that the orders be issued. 10. The counsel for the 10th interested party filed written submissions dated 12th June 2024, vide which it was urged that the issues raised in the application were in regard to title and that therefore this Court lacked the requisite jurisdiction. The Court was urged to dismiss the application. 11. The 3rd interested party submitted vide submissions dated 20th June 2024 that the application lacked merit as she was the owner of the land. Since she was the registered owner, the property was not a “free property” under the Law of Succession Act. It was submitted that the matter was before the Environment and Land Court. It was thus urged that the application be dismissed. 12. It was urged on behalf of the first interested party, vide the submissions dated 9th July 2024, that the application was an abuse of the Court process and should be dismissed as it was res judicata and also because the applicants had filed a multiplicity of suits. It was urged that the application be dismissed with costs. 13. The respondent opposed the application vide written submissions dated 1st July 2024. It was urged that the applicants abdicated their responsibilities as administrators. Regarding the question as to whether the court could grant injunctive relief, it was submitted that once the grant was confirmed, the Court became functus officio. The said remedy was therefore unavailable. It was denied that intermeddling had been proved. Counsel for the respondent argued that the applicants had all the necessary documents, which is why they were able to obtain the grant. Counsel therefore prayed for the application to be dismissed. 14. I have perused the application, the responses thereto, and considered the submissions of the various parties. 15. It would appear to me as a common ground that during the lifetime of their mother, the respondent controlled the estate of the deceased as an agent of their mother. It is also clear that the applicants do not appear to have administered the estate with any diligence, as a result of which significant portions of it have been sold. The respondent, in response, accuses the applicants of not completing the distribution, https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17265/eng@2024-10-04 3

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but does not adequately address the issue of the sales of the properties of the estate. In my view, he has engaged in bare denial. 16. From the evidence that I have seen, the respondent ought to account for all his activities, as he was substantially in control of the estate. He also ought to produce all the titles in his possession so that the administrators can complete the administration of the estate. In making this finding, I do not absolve the applicants of their tardiness in completing the administration of the estate. 17. The fact that the estate appears to have been sold without the knowledge of the administrators calls for proper accounting. 18. In the view, the summons dated 20th December 2023 has merit in the circumstances, I find as follows; a. Prayers Nos. 1 and 2 of the said summons are spent; b. Prayers No. 3 is allowed. I order the respondent to produce the report on the resultant subdivisions of Plot No.539/III/MN as from the date of death of the deceased within 60 days of the date hereof; c. Prayer No. 4 is allowed. The respondent is ordered to produce all titles in his possession within 60 days of the date hereof; d. Prayer No. 5 is denied; e. Prayer 6 is also denied as there is a concurrent matter before the Environment and Land Court in Malindi, which has the jurisdiction to hear and determine it; and f. I order the administrators to prepare an inventory of the assets of the deceased within 60 days of the date hereof; 19. Each party shall bear his/her/their own costs. 20. It is so ordered. DATED AND SIGNED AT MOMBASA, THE 4TH DAY OF OCTOBER 2024. DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS. GREGORY MUTAI JUDGE In the presence of :Mr Odhiambo for the Applicants; Mr Lumatete Muchai, for the Respondent; Mr Omollo, for the 1st Interested Party; Mr Odongo for the 3rd Interested Party; Ms Ikanda, holding brief for Mr Mwangi Kihira, for the 10th Interested Party; Mr Mkan for the 16th Interested Party; and Arthur - Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17265/eng@2024-10-04 4

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