Case ID:185193

In re Estate of Alihadi Dafilla Ali (Deceased) [2021] eKLR

Case Metadata

Case Number:

Miscellaneous Application E011 of 2020

Parties:

In re Estate of Alihadi Dafilla Ali (Deceased)

Date Delivered:

15 Oct 2021

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Law Courts)

Case Action:

Ruling

Judge(s):

Maureen Akinyi Odero

Citation:

In re Estate of Alihadi Dafilla Ali (Deceased) [2021] eKLR

Court Division:

Family

County:

Nairobi

Extract:

0

Case Outcome:

Summons dismissed in its entirety

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

FAMILY DIVISION

MISC APPLICATION NO. E011 OF 2020

IN THE MATTER OF THE ESTATE OF ALIHADI DAFILLA ALI (DECEASED)

MERCY NJOKI aka

FATUMA MERCY NJOKI.................................PETITIONER/APPLICANT

VERSUS

KENYA COMMERCIAL BANK LIMITED...........................RESPONDENT

RULING

(1) Before this Court is the summons dated

8

th

July 2020

by which the Petitioner/applicant

MERCY NJOKI aka FATUMA MERCY NJOKI

seeks the following orders:-

“1. Spent.

2. THAT the Respondent be and hereby ordered to allow the

Petitioner immediate access to the deceased’s Estate bank account No. 110xxxxxxx as per the orders of the Succession Court issued on 5

th

March 2019 and the certificate of confirmation of grant issued on 13

th

March 2019 by the Kadhi’s Court in Lamu Succession Cause No. 8 of 2019.

3. That there be an order allowing the Petition to withdraw

funds from the deceased’s estate account No. 110xxxxxxx as a beneficiary and heir of the deceased’s estate.

4. That the Respondent be and is hereby ordered to avail to the Petitioner the current statement of accounts of the Deceased’s estates account No. 110xxxxxxx.

5. That the Honourable Court be at liberty to issue further directions in this matter as it deems fit and necessary.

6. That costs of this Application be provided for.”

(2) The summons was premised upon

section 35 (1) (a) & (b)

and

section 47

of the

law of Succession Act, Cap 160, Laws of Kenya

and

Rule 73

of the

Probate & Administration Rules

and all other enabling provisions of law, and was supported by the Affidavit of even date and the supplementary affidavit dated

3/11/2020

Sworn by the Applicant.

(3) The Respondent opposed the summons through their Replying Affidavit dated

10

th

February 2021,

sworn by

ANNE WAIRIMU THAIRU – NJUA

the Centre Manager Advantage Banking at

Kenya Commercial Bank

. The summons was canvassed by way of written submissions. The Applicant filed the written submissions dated

12

th

July 2021.

The Respondents relied upon their written submissions dated

21

st

July 2021

whilst the Applicant filed submissions dated

11

th

August 2021

in response to the Respondents submissions.

BACKGROUND

4. This matter concerns the estate of one

ALIHADI DAFILLA ALI

(hereinafter ‘the Deceased) who is said to have passed away at

Kenyatta National Hospital

on

17

th

January 2017.

The Applicant avers that she got married to the Deceased in

Nakuru

on

4

th

February 2010,

having converted to Islam on

8

th

December 2009.

The Applicants position is that she, as the only widow of the Deceased and the minor

AZD

are they only survivors of the Deceased.

5

.

The Applicant averred that following the demise of the Deceased she applied for and obtained letters of Administration intestate on

5

th

March 2019

from the Kadhi’s Court in

Lamu

vide Succession Cause

No 8 of 2019.

The said letters of Administration were duly confirmed on

13

th

March 2019.

6. The Applicant contends that on the basis of the confirmed Grant she proceeded to the

Kenya Commercial Bank

, seeking to be granted access to the Deceased’s Bank Account. That the Respondent denied her access to said account and instead caused her to be arrested by the

Banking Fraud Unit

alleging that the documents presented to the Bank staff specifically the Death Certificate in respect of the Deceased were fraudulently obtained. Thereafter on

15

th

March 2019

the Applicant was charged with a criminal offence of forgery and uttering false documents at the Milimani Chief Magistrate’s court vide

CMCC No. 473 of 2019.

7. The Applicant pleads that she is in dire need of the funds held in the Deceased’s account to enable her cater for the needs of herself and the minor, who are the heirs of the estate of the Deceased. She submits that the Grant issued to her by the

Kadhi Court

in

Lamu

has never been challenged and/or revoked. That there is no dispute that the money held in the account belongs to the Deceased. Finally, the Applicant argues that if the Respondent’s Bank is permitted to persist in denying her access to the said account then she and the minor will be prejudiced as they will be denied benefits rightfully bestowed upon them by a competent court.

8. The Respondent Bank opposed the application. It was averred for the Respondent that upon presentation of the court orders issued by the Kadhi Court in

Lamu

together with a copy of the Death Certificate of the Deceased the Bank as was required conducted due diligence to determine the authenticity of the documents presented to it.

9. The Respondent confirmed that the Deceased did indeed hold an account with their

[Particulars Withheld] Branch

. However, although the Deceased is alleged to have died in

January 2017

according to the Bank, the Deceased’s account had continued to be operational upto

December 2020.

That the said account was still being operated by a person purporting to be

Alihadi Dafilla Ali

(the Deceased herein). Therefore the Respondents suspected that the Deceased was still alive, and that a fraud was being perpetrated against the account in question.

10. The Respondent immediately reported the matter to the

Banking Fraud Unit

to investigate. Upon conclusion of investigations by police the Applicant was arrested and was charged with forgery and uttering false documents. The criminal trial is still ongoing.

11. The Respondent submits that given the above circumstances they were justified in denying the Applicant the Deceased’s account. They submit that the present application is defective, bad in law and is frivolous, vexatious and an abuse of court process. They urge the court to dismiss the application it its entirety.

Analysis and determination

12. I have carefully considered the application before this court, the Replying Affidavit in response thereto as well as the written submissions filed by both parties. The only issue for determination is whether the Respondent bank should be ordered to provide the Applicant with immediate access to the account in question and allow her to withdraw funds from the said account.

13. The fact of the existence of an account

No. 110xxxxxxx

in the name

Alihadi Dafilla Ali

exists at

Kenya Commercial Bank,

(hereinafter the ‘Subject Account’) is not in any dispute. The Respondent bank concedes that the Subject account exits.

14. The Applicant avers that she professes the

Islam faith

having converted to Islam on

8

th

December 2009

. Annexed to the Supporting Affidavit dated

8

th

July 2020

is her certificate of conversion to Islam (annexture

‘MN-I’

). The Applicant further avers that she got married to the Deceased under Islamic Law on

4

th

February 2010.

She has annexed to the same Supporting Affidavit a copy of her certificate of marriage (Annexture ‘

MN-2’

). That the union was blessed with one child a daughter named

AZD

(hereinafter ‘the minor’)

15. The Applicant stated that the Deceased passed away on

17

th

January 2017

and was survived by herself and the minor. She has annexed to her Supporting Affidavit a copy of the Death Certificate

(‘MN – 3’).

On the basis of this Death Certificate the Applicant filed succession proceedings at the Kadhi’s Court in

Lamu

and obtained letters of Administration issued in her favour on

5

th

March 2019.

Based on the certificate of confirmed Grant dated

13

th

March 2019

(Annexture

‘MN – 5’)

, the Applicant claims the right to access and withdraw funds held in the Deceased account at the Respondent Bank.

16. The Respondent on the other hand query the fact of Death of the Deceased. They aver that though

Alihadi Dafilla

is said to have died in

January 2017

the accounts in his name has continued to be operated by a person(s) claiming to be the Deceased from

January 2017

to

December 2020

. For this reason, the bank involved the

Banking Fraud Unit

who upon investigating caused the arrest and charging of the Applicant for the offence of fraud.

17. It is not the duty of this court to determine the validity or otherwise of the criminal charges laid against the Applicant. That is a matter to be determined solely by the trial court. However, there are certain anomalies which arise in the matter to which this court cannot just turn a blind eye.

18. Firstly the court questions the validity of the Death Certificate which the Applicant seeks to rely on as proof of the Death of her husband. In the Kadhi’s Court in

Lamu

the applicant presented as proof of death a certificate serial number

654623

(Annexture ‘

MN-3’)

which Death Certificate indicates that the Deceased died at the

Kenyatta National Hospital

on

17

th

January 2018.

This Death Certificate indicate that the Deceased died in January of

2018

whilst in her supporting Affidavit the Applicant has averred that her husband passed away on January of

2017

- which is the correct position?

19. When the Applicant appeared before the Bank officers at the

[Particulars Withheld] Branch

she presented a different death certificate being Serial Number

436630 indicating

the date of death as

17

th

January 2018.

The question that immediately springs to mind is why do there exist two different death certificates for the same person. Secondly, why did the Applicant present the death certificate Serial No.

654623

before the Kadhi Court in

Lamu

yet she presented a totally different Certificate being serial number

436630

in her attempt to gain access to the Subject account.

20. The Applicant attempted to explain this anomaly by stating that following the demise of her husband she requested an agent to assist in acquiring the Death Certificate, which Death Certificate Serial

No. 654623

was used to obtain the Grant from the Kadhi Court in

Lamu

. That it was only after her arrest that the Applicant realized that the Death Certificate given to her by said agent was a forgery and had

not

been issued by the Registrar of Births and Deaths.

21. The Applicant then went about obtaining the second death Certificate being serial

No. 4366303

which she presented to the Respondent Bank demanding access to the account of her late husband.

22. This explanation far from being satisfactory only serves to raise further questions. It is manifest that the Grant issued to the Applicant by the Kadhi court in

Lamu

was by the Applicants own admission issued on the basis of a

forged death certificate

. How then can that Grant be said to be valid and enforceable. I have no doubt that had it been disclosed to the

Hon Kadhi

that the Death Certificate which had been presented to him was a forgery then the Kadhi would not have issued the Grant to the Applicant.

23. The Applicant cannot simply discard the forged Death Certificate, substitute it with another Death Certificate and then proceed to the Bank demanding that she be allowed access to the account. The fact of the matter is that the Grant issued to the Applicant in

Lamu

was premised on a forged Death Certificate. As such said Grant is invalid and cannot be enforced. The proper procedure would be for the Applicant to seek a fresh Grant on the basis of the new Death Certificate that she has now obtained. She cannot be allowed just to substitute a Death Certificate and purport that it is genuine without necessary enquiry being conducted. Accordingly, the Grant issued to the Applicant in

Lamu

which by the admission by the Applicant herself, was obtained on the premise of a forged Death Certificate, is null and void and therefore unenforceable.

24. It is trite law that curt orders must be obeyed. In the ordinary course of events a valid Grant issued to the Applicant would have been enforceable as against the Respondent bank. However the validity of the Grant issued to the Applicant has been put in serious question through the admission by the Applicant herself that said Grant was issued on the basis of a forged Death Certificate.

25.

Section 76

of the

Law of Succession Act Cap 160 Laws of Kenya

provides for the circumstances under which a grant may be revoked by the court.

Section 76

provides as follows:-

“A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides,

either on application or by an interested party or of its own motion

-

(a) that the proceedings to obtain the grant were defective in substance.

(b) that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;

(c) that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justice the grant notwithstanding that the allegation was made in ignorance or inadvertently;

(d) ……………..” (own emphasis)

26. It is manifestly clear that the Grant issued to the applicant by the Hon Kadhi in

Lamu

was obtained by the making of a false statement. As such, the proceedings before the

Hon Kadhi

were defective in nature. This court will not enforce the Grant given the circumstances under which said Grant was obtained.

27. This court also cannot ignore the fact that the Applicant is currently facing criminal charges in respect to the said forged death certificate. The Applicant has conceded that she is facing charges vide

Milimani

CMCC No. 473 of 2019.

28. In her supplementary Affidavit dated

3

rd

November 2020

the Applicant at

paragraph 9 depones

as follows

–

“

THAT

I was not privy to nor did I take part in any acts of forging, uttering the deceased’s death certificate or the birth certificate for my daughter and I will prove during the hearing of the criminal matter that I am innocent of all the charged levelled against me”

It is clear that the question of whether or not the Applicant was involved in the forgery of documents used to obtain the Grant issued by the Kadhi court in

Lamu

is one which is yet to be determined in the criminal trial.

29. In the circumstances acting

suo moto

this court hereby revokes the letters of Administration issued to the Applicant on

5

th

March 2019

in respect to the estate of

ALIHADI DAFILLA ALI.

The certificate of confirmed Grant dated

13

th

March 2019

is similarly revoked. The summons dated

8

th

July 2020

is dismissed in its entirety. Each party to bear its own costs.

DATED IN NAIROBI THIS 15TH DAY OF OCTOBER, 2021.

.........................................

MAUREEN A. ODERO

JUDGE