Automated Summary
Key Facts
The Public Trustee, as administrator of the deceased's estate, sought court approval to transfer three properties (Mombasa/Block XVII/721, Mombasa/Block XVII/502, and Malindi/402) to Mohamed Omar Mohamed and Ahmed Omar Mohamed. Other beneficiaries opposed the transfers, claiming the sale agreements were forgeries. Police investigation confirmed the agreements were genuine, but the court ruled the Public Trustee had acted impartially by favoring the purchasers over the majority beneficiaries. The application was dismissed with costs to the opposing parties.
Deceased Name
Omar Mohamed Mohamed Hatimy alias Bin Mohamed bin Mohamed El-Barawi
Issues
Whether the Public Trustee is entitled to institute proceedings for the approval of property transfers to a minority of beneficiaries when the majority of the estate's heirs object, and whether this constitutes a breach of the Public Trustee's duty to act impartially under Section 11 of the Public Trustee Act.
Holdings
The court dismissed the Public Trustee's Originating Summons, finding that the Public Trustee acted in breach of their duty to act impartially by favoring the purchasers (1st and 2nd Respondents) over the majority of beneficiaries. The ruling emphasized that the Public Trustee should have invoked Section 11(2) of the Public Trustee Act to require claimants to file their own suit rather than pursuing the application.
Remedies
- The court ordered that costs of the proceedings be paid to the 3rd, 5th, 6th, 7th, 8th, 9th, 10th, and 11th respondents. This remedy was granted due to the Public Trustee's abuse of power and failure to act impartially in administering the estate, as determined by the court's analysis of the Public Trustee's affidavit and the estate distribution dispute.
- The court dismissed the Public Trustee's Originating Summons seeking approval of property transfers under the proviso of Section 11 of the Public Trustee Act. The dismissal was issued on 2010-11-29, with costs awarded to the majority of respondents (3rd, 5th, 6th, 7th, 8th, 9th, 10th, and 11th) who opposed the transfers. The court found the Public Trustee had breached their duty by acting impartially and prejudicially to beneficiaries.
Will Type
Intestacy
Probate Status
Letters of Administration Intestate issued in Probate and Administration Cause No. 318 of 2005
Legal Principles
The court held that the Public Trustee must act impartially in administering an estate and cannot favor one beneficiary at the expense of others. The judge emphasized that the Public Trustee's duty requires fairness and objectivity, particularly when disputes arise between beneficiaries.
Succession Regime
Hybrid regime involving Letters of Administration Intestate under Common Law and distribution according to Islamic Law of Succession
Executor Name
PUBLIC TRUSTEES
Cited Statute
- Probate and Administration Rules
- Public Trustee Act
Executor Appointment
Administrator by virtue of Letters of Administration Intestate issued in Probate and Administration Cause No. 318 of 2005
Judge Name
M.K. Ibrahim
Passage Text
- The content and tenor of the Public Trustee's affidavit is tilted in favour of the alleged purchaser and prejudicial to the interests of the majority of the beneficiaries. As a result I find and hold that he was not entitled to make the application in this case.
- In view of the foregoing the Public Trustee is in clear breach of his obligation and duty to act fairly and impartially and he is not entitled to prosecute the application. The court must stop this abuse of power and duties.
- Applying this principle, it is not the place of the Public Trustee in view of the nature and extent of the dispute to have made value judgments on the validity or enforceability of the sale agreements. While the Public may not find evidence to sustain the offences of forgery, yet it is not the function of the Police or the Public Trustee to resolve disputes between beneficiaries. Once there is a dispute, the Public Trustee can present the suit to court for a fair determination and discharging his duties fairly, impassionately, objectively and impartially.
Beneficiary Classes
Heir-At-Law