In re Estate of Abdo Seif Hashid (Deceased) [2014] KEKC 4 (KLR)

In re Estate of Abdo Seif Hashid (Deceased) [2014] KEKC 4 (KLR)

REPUBLIC OF KENYA

IN THE KADHIS COURT AT KISUMU

SUCCESSION CAUSE NO 28 OF 2014

IN THE MATTER OF THE ESTATE OF ABDO SEIF  HASHID (DECEASED)

AZMARA ABDO SEIF........................................APPLICANT

FATAMA ABDO.........................................1st RESPONDENT

SHADIA ABDO........................................2nd RESPONDENT

JUDGEMENT

AZMARA ABDO SEIF of  Passport  number A143798 referred herein as a petitioner filed a petition on 6th day of OCTOBER  2014

the petitioner claimed   that : the deceased was her husband and He was survived by a widow and twelve children  three sons  and nine daughters.

The deceased left the following  properties and  estate:

1 - jaggery shared with an Indian  NAREN PAU also deceased

2 - plot in YALA but undeveloped

3 - lorry sold by 1st respondent

4 - tractor

5 - trailers

The petitioner complained that the  first  respondent  has been managing  the properties  but has refused to share the proceeds with her siblings  addition to that the 1st respondent  has gone to an extent of selling  lorry without consulting the family  and  she know  what she did .

the petitioner sought that: the first respondent  has  acquired  big debts  to  a tune of  sh 800,000 /= which can cause  all the asset  being auctioned  if petitioner does not act fast.

the petitioner add that the family has decided not to  distribute the estate because it is not enough for all of them.

The petitioner prayed for

(a) The respondent to surrender all the assets in their possession back to the petitioner

(b)  trailer and tractor  to enable her pay the incurred debts.

looking the side of  first respondent she claimed that: she was not working in the machine initially she had her own business   scrap mental  she  used to go to Dubai to buy things for  sale  she had a husband.

Her brother seif asked her to join him in management the businesses and to talk to  her husband to  boost the business. she talked  to her husband  who bought tires drums  of diesel   same capital  and provide them same money for the businesses.

her sister Swabaha  had a brain tumor  and was to be taken to India for treatment she asked her husband to help them but declined  because he was not receiving any things  from the machine lastly he gave them 450,000 /= and Swabah was operated on . she I invested another Sh 150000 /=  but the money was not returned .Then her family requested  her husband to buy a new a tractor in 2004 - 2005 he bought  but Norman refused that the tractor  should  not be enjoined the machine .

The first respondent sought that : she self Norman and ail  started working in the mechanic she was  accountant  sef was marketer Norman was in charge of maintenance they did businesses  and paying her husband  after one year they had adept of ksh  150,0000/=  then they paid 150,0000/= and  warned the respondent's husband  to stop dealing in the business the first respondent  also left the business  she  moved to anther factory for her neighbor she took basin from their  father's  spare part  she started from scratch  bought her own spare her husband  accepted to buy for her  another tractor  in 2007 .

the respondent claimed that Norman left the factory  she  requested him to allow her back in the company instead  of paying rent to another person where she had rented  .He accepted .there  came Wedding for nomarn;s daughter  the  year 2012 she gave out sh 400,000/= after  shadier request her to save the situation. after wedding  business started   coming down  suddenly  her brother Ali died  She footed all the funeral  bills trough the money was borrowed.

The respondent claimed that the second tractor  broke the block Norman advised her to  take the block  from the first tractor  and replace the  second tractor .

the respondent sought that her mother (applicant)  told her to leave machine for her sister naima but she told her to allow her  finish her case caused by the accident but  norman  sent her out and said  that he had taken over the machine . she proposed that  norman and naima should join her instead of kicking her out .       

the respondent admit that she bought the trailer from Norman and paid him 130,000/= without agreement.

on the other hand the second respondent claimed that there  is money she gave the first respondent concerning the accident  she beloved that she would give her back but when the second respondent  told Norman and  the petitioner about the money  they said  they were not  aware  the money.

to support the issue  the first respondent availed  one witness  namely Seif  he testified confirming the respondent ’s claim in respect of the canter  and tractor . As the second respondent availed one   witness namely farhia abdo  she testified confirming the second  respondent ’s claim in respect of the  her money.

I have noted the matter clearly and I found that: the first respondent  she was shared the proceeds with her siblings  and helped her family  regarding Wedding for nomarn;s daughter  the  year 2012 used 450,000  expensive  treatment .

the respondent admit that she bought the trailer from Norman and paid him 130,000/= without agreement and it was family property.

the second respondent said that she can only release the tractor if she  was paid 300000.

the first respondent admitted that she took  the block  from the first tractor  and replace the  second tractor  which was her property.

upon hearing both parties herein and their witness the mater to be determine are :

(a) whether The respondent to surrender all the assets in their possession back to the petitioner  as petitioner prayed for?

(b)  Is it compulsory  for the petitioner to pay 300000  to shadia as the first  respondent  preyed for .

(c) who is responsible for payment of 350000 to mulunda and sh 120000  to muya ?

Referring to issue (a)  it is clear to this court that the first respondent  is not willing to go back to the jaggery  although she excepted  to return the block but refused to surrender the tractor.

whoever will take over the running of the factory will pay the second respondent the amount she gave out for the sake of reviving the factory .

and the same will apply to issue c

on this basis  this court finds it justice to appointed  the petitioner ( zahara) to run the factory from now henceforth .

2- the firs respondent should retune the block and any other spear at spear part in her possessions to the petitioner and vise vice

3- the first   respondent  to return the trailer to the petitioner immediately as the trailer  was  the family asset  sold to her illegal without approval the family member  she did not produced an agreement  of sell .

4  the second respondent should return the trailer in possession to the petitioner to enable the petitioner make business with it and pay her 50000 ksh monthly till the total amount of 30000  is complete  this is with effect from January. filer to do so by the petitioner the trailer  shall be declared  the property of the second respondent

5 about the pica up  the court adopts  the consent  made between seif and the  first respondent  before this court

6 - the petitioner remains as administrator of the estate of the late abdo saif until she decide  otherwise

 IR/ A -30 days

 Read and delivered this 8th day of DECEMBER 2014

in the presence of.

Mursal.M.Sizi---------kadhi

court Assistant-----Rehema Akidah

presence of;

-MURSAL .M .SIZI- KADHI 11

-Court Assistant -Rehema Akidah,

          Petitioner-

 -Respondent

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