[2017] KEHC 9257 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

FAMILY DIVISION

SUCCESSION CAUSE NO. 2859 OF 2012

IN THE MATTER OF THE ESTATE OF DANIEL MACHARIA ALIAS DANIEL KAGO ALIAS KAGO MUKORE ALIAS DANIEL KAGO MUKORE (DECEASED)

GLADYS WAMBUI KAGO……….………….……...1ST APPLICANT

ESTHER WANJIKU KAGO……….…..……………2ND APPLICANT

VERSUS

MERCY NDUTA KAGO……………....……………….RESPONDENT

RULING

1. There deceased Daniel Macharia alias Daniel Kago alias Kago Mukore alias Daniel Kago Mukore died intestate on 27th September 2012. On 27th November 2012 the applicants Gladys Wambui (1st applicant) and Esther Wanjiku (2nd applicant) petitioned the court for the grant of letters of administration intestate. In their affidavit to support the petition they stated that the deceased had left four widows each with children as follows:-

(a) Esther Wanjiku – (1st widow)

Hannah Wangui (daughter);

Joseph Macharia (son);

(b) Gladys Wambui Kago (2nd widow/1st applicant);

Benson Ngugi Nduati (son);

Andrew Macharia (son);

David Thandi (son);

(c) Jesinta Njoki Mwaura (3rd widow/dead);

Valentine Kanini (daughter);

Joseph Macharia (son);

Blaise Muchina (son);

(d) Mercy Nduta (4th widow/respondent);

Nancy Wanjeri (daughter);

Joseph Gitau (son);

Geoffrey Gathogo (son);

2. The estate of the deceased comprised the following properties:-

a) Githunguri/Kanjai/1805;

b) Githunguri/Kanjai/1806;

c) Githunguri/Kanjai/1808;

d) Githunguri/Kanjai/1809;

e) Githunguri/Kanjai/1811;

f) Githunguri/Kanjai/1208;

g) Githunguri/Kanjai/1211;

h) Githunguri/Kanjai/1212;

i) Githunguri/Kanjai/1213;

j) Githunguri/Kanjai/1439;

k) Lorry KBJ 460J; and

i) Saloon KBK 578V.

3. The grant was issued to the applicants on 6th August 2013.

4. On 30th April 2014 the respondent filed summons for the revocation/annulment of the grant on the basis that the applicants were strangers to the estate of the deceased who had no basis to petition for the grant, or be issued with the same; and that she was the only surviving widow of the deceased who was therefore entitled to petition for the grant. She stated that neither applicant was married to the deceased, but that the 2nd applicant was the deceased’s girlfriend with whom he got two children and, similarly, the 1st applicant was the deceased’s girlfriend with whom he had three children. The application has not been heard and determined.

5. On 28th October 2016 the applicants filed the present application seeking the court to compel the respondent to deposit into a joint account monies obtained from land leases and shop rents in respect of the estate of the deceased. In the supporting affidavit, the 1st applicant stated that although they have a grant of the letters of administration it was the respondent who was solely enjoying rents accruing from Githunguri/Kanjai/1439. They annexed a schedule showing tenants and how much each was paying to the respondent. The applicants claimed that the application for the revocation of the grant had failed to take off because of the respondent. In response, the respondent stated that the applicants were not at all entitled to any part of the estate. She denied that she had stalled the hearing of her application.

6. The court will have, during the hearing of the application for the revocation of the grant, determine whether or not the applicants were widows of the deceased, and therefore beneficiaries of his estate. For the time being, however, they are entitled, as administrators of the estate of the deceased, to take and secure the property in the estate of the deceased until such time that the same has been distributed to the respective beneficiaries following the confirmation of the grant. Sections 79 and 82 of the Law of Succession Act (Cap 160) confirm this legal position. Under section 79, all the property of the deceased shall vest in the administrator. Under section 83, the administrator is under duty to provide a full and accurate account of all dealings in respect of the estate. It would therefore not be right or lawful for the respondent to be the one dealing with any part of the estate, including receiving and using rents from land parcel Githurai/Kanjai/1439.

7. It is, however, appreciated that the respondent is acknowledged to be a widow of the deceased and therefore a beneficiary. It is imperative that, given the dispute contained in the summons for the revocation, the estate be preserved until such time that all the beneficiaries have been ascertained and their respective shares determined.

8. It is for these reasons that I order that the applicants do take charge of the estate of the deceased. In respect of Githunguri/Kanjai/ 1439, I direct that all rents from the tenants therein shall from the date of this decision be collected by the applicants and deposited into an account jointly opened and operated by them and the respondent. In those terms, the application is granted. I make no order as to costs.

SIGNED at NAIROBI this 14TH day of SEPTEMBER 2017.

A.O. MUCHELULE

JUDGE

DATED and DELIVERED at NAIROBI this 18TH day of SEPTEMBER 2017.

W. MUSYOKA

JUDGE