In re Estate of Nazir Khan Mohamed (Deceased) (Succession Cause 2 of 2019) [2024] KEHC 17275 (KLR) (6 May 2024) (Ruling) Neutral citation: [2024] KEHC 17275 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT MOMBASA SUCCESSION CAUSE 2 OF 2019 G MUTAI, J MAY 6, 2024 IN THE MATTER OF THE ESTATE OF NAZIR KHAN MOHAMED (DECEASED) BETWEEN NASEEM NAZIR KHAN ....................................................................... PETITIONER AND SAIDA MOHAMED SWALEH .................................................................. OBJECTOR RULING 1. There are two applications before this Court. These are the applications dated 24th October 2023 and 30th October 2023. 2. The application dated 24th October 2023 was brought by way of Chamber Summons by the Objector/ Applicant. It seeks the following orders:- 3. “ 1. That the Honourable court do re-open the proceedings herein (Succession cause no. 2 of 2019) to enable one Mr. Tom Shitakha Ambwere, an Advocate of the High Court of Kenya to appear and give evidence in respect of a purported will allegedly prepared by the Deceased (Nazir Khan Mohamed) dated 23rd February, 2017; and 2. That the costs of this Application be in the cause.” The Petitioner/Respondent brought the second application. It is a Chamber Summons application under Rules 49 & 73 of the Probate and Administration Rules, 1980. It seeks the following orders: “ 1. The ownership of the following properties automatically passed to the Petitioner by dint of survivorship upon the death of the deceased on 16th August, 2017: Apartments Numbers A4 and B7 on Plot Number Mombasa/ https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17275/eng@2024-05-06 1
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Mwembelegeza/1325; Land Reference Number 9122/128 (Original Number 9122/43/93) Kilifi; Land Reference Number 9122/138 (Original Number 9122/43/103) Kilifi; Land Reference Number 9122/131 (Original Number 9122/43/96) Kilifi; Land Reference Number 9122/132 (Original Number 9122/43/97) Kilifi; Property Number Kilifi/Mtwapa/592; Property Number Kilifi/Mtwapa/595; Property Number Kilifi/Mtwapa/633 (Original Number Kilifi/Mtwapa/332); and Land in Manyatta Village, Manyatta Sub-Location, Makindu Division, Makindu District bordering Makindu "A" Primary School, Musa Sila and Kisoi Nthenge and therefore the said properties do not form part of the estate of the deceased; 2. Apartments Numbers A4 and B7 on Plot Number Mombasa/ Mwembelegeza/1325; Land Reference Number 9122/128 (Original Number 9122/43/93) Kilifi; Land Reference Number 9122/138 (Original Number 9122/43/103) Kilifi; Land Reference Number 9122/131 (Original Number 9122/43/96) Kilifi; Land Reference Number 9122/132 (Original Number 9122/43/97) Kilifi; Property Number Kilifi/Mtwapa/592; Property Number Kilifi/Mtwapa/595; Property Number Kilifi/Mtwapa/633 (Original Number Kilifi/Mtwapa/332); and Land in Manyatta Village, Manyatta Sub-Location, Makindu Division, Makindu District bordering Makindu "A" Primary School, Musa Sila and Kisoi Nthenge be removed and/ or struck out from the List of Assets in the Affidavit in Support of the Petition for Letters of Administration with Written Will Annexed filed in Court on 23d January, 2019 and the said properties be excluded from this Succession Cause. 3. Costs of this application be in the cause.” 4. Both applications were opposed by the respective respondents. The parties filed written submissions in support of or in opposition to the applications. I have perused the same. 5. In my view, this Court has the discretion whether or not to allow the application dated 24th October 2023. Having considered the matter carefully, I am of the view that it is necessary to have Mr Tom Shitakha Ambwere testify in this matter, as his evidence is crucial. This is so because the subject will is contested. Whether or not Mr Ambwere prepared the subject will, and if the same expresses the wishes of the deceased, is germane. 6. In the circumstances, I allow the application dated 24th October 2023 with no order as to costs. 7. Regarding the application dated 30th October 2023, the Court notes the Petitioner herein was the one who filed this Petition. She is the person who listed the assets she now seeks to exclude as being the free property of the deceased and thus the proper subject of succession proceedings. The sudden change of mind has not been adequately explained. 8. The understanding of this Court is that properties registered in the name of two people are presumed to be owned in common unless there is evidence that they are jointly held. No evidence was produced to show that the properties listed in the application dated 30th October 2023 were jointly owned and thus automatically became the property of the Petitioner upon the demise of the deceased. 9. In the circumstances, I dismiss the Chamber Summons dated 30th October 2023. 10. Since this is a family matter, each party shall bear her own costs. 11. It is so ordered. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17275/eng@2024-05-06 2
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DATED AND SIGNED AT MOMBASA, THIS 6TH DAY OF MAY, 2024. RULING DELIVERED THROUGH MICROSOFT TEAMS. .................................................... GREGORY MUTAI JUDGE In the presence of:Mr Kiragu for the Petitioner; No appearance for the Objector; Ms Kasmani for the Interested Party; and Arthur - Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/17275/eng@2024-05-06 3
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