[2017] KEHC 3187 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

SUCCESSION CAUSE NO. 306 OF 2011

IN THE MATTER OF THE ESTATE OF ESTHER MUKETHE KILOO (DECEASED)

1. NZIOKA KILOO

2. RUTH MUTANU KILOO .................PETITIONERS

VERSUS

1. BETH NDINDA MUASA

2. ELIZABETH MWENDE MUASA

3. WENDWA DAVID KILOO

4. M/S KILELE

5. JONES MBITHI

6. MUSAU KIOKO

7. MUSAU MBITHE

8. NTHAMBI MBITHI

9. MUYSOKA MBITHE

10. KINYUNGU KINDOLO .............RESPONDENTS

RULING OF THE COURT

1. The Petitioners/Applicants have filed an Application dated 20/03/2017 seeking that a preservatory Order do issue against the Respondents preventing them whether by themselves, servants, agents, family members or any other acting through them or under their instructions from subdividing, disposing, selling, alienating or in any way interfering or intermeddling with land parcel MACHAKOS/KAEWA/2372 pending the hearing and determination the Succession Cause. The Applicants also seek for costs to be provided for.

2. The Application is based on the grounds that the Petitioners are administrators of the estate of the deceased and that the 1st and 2nd Respondents are estranged wives of one David Muasa Kiloo who was the son of the deceased while the 3rd Respondent is a grandson of the deceased. The Application is further grounded on the fact that the 1st and 3rd Respondents had earlier secretly obtained grant of letters of administration which were later revoked by the court and further that the two have meddled with the estate of the deceased and sold portions of the suit land to the 4th, 5th, 6th, 7th, 8th, 9th and 10th Respondents.

3. The Application was strenuously opposed by the Respondents. The 3rd Respondent swore an affidavit on behalf of all the Respondents and raised the following grounds of objections:-

a. That it is the Applicants who are themselves involved in Intermeddling with property of the deceased since they sold part of the land sometimes in 2013.

b. That the deceased had prior to her death sold portions to 4th – 10th Respondents who are currently in occupation and possess title deeds.

c. That the beneficiaries are peacefully in occupation of their respective portions only awaiting for the grant to be confirmed.

d. That the Petitioners are quite distant in relation to the estate.

e. That the Applicants should not be allowed to benefit from their wrong doings upon the estate and their Application should be dismissed.

4. Parties agreed to canvass the Application by way of written submissions. I have duly considered the said submissions.

5. The record reveals that a ruling dated 26/11/2014 revoked a grant that had been issued to 1st, 2nd and 3rd Respondents and the court then appointed the Petitioners as Administrators. Apparently the two groups had been squabbling and wrangling over the running of the estate of the deceased which comprises only of one parcel of land namely MACHAKOS/KAEWA/2372. The Petitioners are accusing the Respondents of intermeddling with the estate of the deceased while on the other hand the Respondents have countered by claiming that the Petitioners had earlier on sold part of the deceased’s land in order to get money to be used as legal fees for one of the beneficiaries who was then serving prison sentence but who has since died. The Petitioners indeed admit vide paragraphs 5 of their further affidavit sown on 22/05/2017 that they had sold part of the land sometimes in 2013. This was before the confirmation of the grant. The Respondents on the other had maintain that the sale of land to the 4th – 10th Respondents had been sanctioned by the deceased herself as shown in the copies of sale agreements annexed to the replying affidavit.

6. I have perused the sale agreements entered into by the deceased and the 4th – 10th Respondents and find the same appear on face value to be authentic. The deceased died in 2008 while the agreements were entered around 1995 and 2005 thereby implying that the deceased indeed participated in the sale transactions. The Petitioners have claimed that they do not know how the buyers managed to obtain title deeds to the parcels. It is not known whether the deceased had signed any transfer forms prior to her death. All these issues could very well be raised during the confirmation of the grant. The purchasers who had purchased the parcels from the deceased and who are in occupation currently cannot be said to be intermeddling with the estate of the deceased. They have to remain on the land until all issues are ironed out during the confirmation process.

7. As the Petitioners have admitted selling part of the deceased’s land in 2013 before confirmation of grant, their action amounts to intermeddling in the estate of the deceased. As the administrators of the estate, they held a special role in ensuring that nothing untoward happened to the estate for the benefit of the legitimate beneficiaries. The Petitioners ought to have known that they had a special duty of care towards the estate and the beneficiaries. I note that the Petitioners were issued with a grant about two (2) years ago and since then they have not moved to court to file the summons for confirmation of grant. They have not given any explanation for not filing the requisite summons for confirmation of grant. The Petitioners were supposed to file summons for confirmation of grant within six months upon being issued with the grant. This was their onerous duty and after confirmation they could then say they have discharged their duties. As it has been found that they had intermeddled with the estate of the deceased, they should be the last people to find fault at the Respondents. Respondents have properly explained themselves and I am satisfied by their explanation. The ball now is upon the Petitioner’s Court to move the court appropriately by filing the summons for confirmation of grant. I find granting the orders being sought by the Petitioners would create confusion.

8. With the foregoing, the Petitioners Application dated 20/03/2017 lacks merit. The same is ordered dismissed with no order as to costs. The Petitioners are hereby ordered to proceed and file summons for confirmation within the next sixty (60) days from today.

It is so ordered.

Dated, Signed and delivered at MACHAKOS this 4TH day of OCTOBER, 2017.

D. K. KEMEI

JUDGE

In the presence of:

Kyalo for Kisongoa for Respondent

No appearance for silo for Petitioner

C/A: Kituva