In re Estate of Mehdi Haiderali Khimji (Deceased) (Succession Cause 53 of 2016) [2022] KEKC 4 (KLR) (Family) (20 June 2022) (Ruling)

Key Facts

Deceased Name

Issues

• The court evaluated the applicant's claim that the administrator (Murtaza A. Somji) should be removed for misappropriating estate assets and omitting property LR. No. 209/152/2/1/5 from the inventory, potentially violating Section 76 of the Laws of Succession Act. The applicant argued the administrator failed to list all estate properties and delayed distribution, while the administrator denied these allegations.
• The applicant alleged the administrator did not act diligently in distributing the estate, citing delays and failure to provide proper accounts. The court found insufficient evidence of non-diligence but ordered the administrator to render accounts within 90 days. The administrator claimed delays were caused by beneficiary interference.
• The applicant argued that property LR. No. 209/152/2/1/5 was excluded from the estate inventory despite being listed in the will. The court noted the property was not included in the original application or court orders but was mentioned in the will, determining the omission was curable through review rather than revocation. A dispute over deceased's share in another property (LR. No. 1870/VI/131) was also raised but not pleaded.

Date of Death

Holdings

• The court dismissed the application for revocation of the administrator's grant except for the prayer requiring the respondent to render accounts within 90 days. The application was found to lack merit on all other grounds, with the court noting no evidence of misappropriation or failure to act diligently. The costs of the application were ordered to be borne by each party.
• The court ruled that the respondent must produce a true and comprehensive account of the estate's administration within 90 days of the ruling. This was the only valid prayer granted, as other claims of mismanagement or defective proceedings were not substantiated by evidence.

Remedies

• Application certified urgent
• The respondent is compelled to deposit into court all the title documents they are holding in respect of property forming part of the estate, particularly LR. No. 209/152/2/1/5.
• The Honourable Court is pleased to remove the respondent Murtaza A. Somji as the administrator of the estate of the deceased.
• The respondent is compelled to produce or make available in court the bank statements in respect of all the deceased's bank accounts from the date of appointment to date.
• The costs of this application are to be borne by each party in the cause.
• The Honourable Court sets aside the order issued on March 9, 2017 and all consequential orders and proceedings thereto.
• The respondent is compelled to render a true and comprehensive account for their administration of the estate.
• The Honourable Court is pleased to appoint Haiderali Mehdi Khimji as the administrator of the estate of the deceased.
• The Honourable court issues an order suspending any further operations, management and activities by the administrator in respect of the estate of the deceased.

Will Type

Probate Status

Legal Principles

• The court exercised its discretion under Section 76 to deny revocation, noting that disputes over property could be resolved through correction rather than annulment. It highlighted the importance of procedural compliance and the curability of certain issues without revoking the grant.
• The court found no evidence of the administrator's failure to proceed diligently with the estate administration, despite claims of mismanagement and failure to disclose all assets. The respondent was ordered to render accounts within 90 days.

Succession Regime

Precedent Name

Executor Name

• Murtaza A. Somji
• Haiderali Mehdi Khimji

Cited Statute

Executor Appointment

• Named in the deceased's will as executor
• Appointed by the court as administrator

Judge Name

Passage Text

• 'under section 76, the court has discretionary power when faced with an application for revocation. It can make such orders as it considers fit in the circumstances. The court is not bound to issue revocation even where the case been set out under section 76. In Kipurgat arap Chepsiror and Others v Kisigut arap Chepsior, the court declined to grant the prayer for revocation, but instead entered the names of the applicants in the grant as beneficiaries...'
• Save for the prayer for accounts, the application lacks merit and is dismissed. Each party to bear its own costs.
• I have read the application for revocation, affidavits and annexures thereto and have struggled to find any evidence of lack of diligence on the respondent's duty as administrator or misappropriation of funds. The applicant is only one of five heirs of the late Mehdi Haiderali Khimji. The other four heirs hold contrary view. They confirm he has been doing a wonderful job in the administration of the estate and deny he misappropriated any funds. They further confirmed that most of the estate properties have already been transferred to the widow of the deceased.

Beneficiary Classes

• Charity
• Spouse / Civil Partner
• Child / Issue