[2021] KEHC 13555 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

FAMILY DIVISION

SUCCESSION CAUSE NO. 718 “A” OF 2012

IN THE MATTER OF THE ESTATE OF DORCAS WAIRIMU RIITHO (DECEASED)

JEANNE WATETU KIMANI.............APPLICANT/PERSONAL REPRESENTATIVE

KENNETH ANTHONY RIITHO.......APPLICANT/PERSONAL REPRESENTATIVE

VERSUS

NICHOLAS GAKUYA RIITHO......RESPONDENT/PERSONAL REPRESENTATIVE

IRENE WANJA RIITHO..................RESPONDENT/PERSONAL REPRESENTATIVE

RULING

1. Before this Court for is the summons dated 14th January 2021in which JEANNE WATETU KIMANI(the 1ST Applicant) andKENNETH ANTHONY RIITHO(the 2nd Applicant) seek the following orders:-

“1. Spent.

2. THAT the court be pleased to give an order that administration of the estate herein, be completed within 90 days through sale of property known as Plot No. 15003/25 Garden Estate to facilitate its distribution equally amongst all the beneficiaries named in the confirmation of the grant issued herein;

3. THAT the court be pleased to give an order that an independent valuer be appointed immediately to value the property known as Plot No. 15003/25 Garden Estate and upon issuance of their report, the suit property be put on the market within 7 days and sold to the highest bidder within 90 days thereof and the proceeds of sale distributed amongst the beneficiaries named in the confirmation of grant issued herein;

4. THAT the court be pleased to give an order that the Deputy Registrar of the High Court – Family Division shall sign any sale and/or transfer document in respect to the plot known as Plot No. 15003/25 Garden Estate in place of any personal representative who will fail to do so within 7 days of dispatch or presentation of such documents to them via email or any other form of written communication;

5. THAT the costs of this application be in the cause.”

2. The summons was premised upon section 47, 83(f), and 83 (g) of the Laws of Succession Act and Rules 25 (5), 49, 59(1) (2) (5),(6) Rule 73 of the Probate and Administration Rules and was supported by the Affidavit of even date and the supplementary Affidavit dated 17th August 2021 sworn by the 1st Applicant.

3. The 1st Respondent NICHOLAS GAKUYU RIITHO and the 2nd Respondent IRENE WANJA RIITHO opposed the summons through the Replying Affidavits dated 3rd August 2021 sworn by the 2nd Respondent. The summons was canvassed by way of written submissions. The Applicants filed the written submissions dated 17th August 2021 whilst the Respondent relied upon their submissions dated 28th September 2021.

BACKGROUND

4. This matter relates to the estate of one DORCAS WAIRIMU RIITHO (hereinafter ‘theDeceased’) who died at the Kenyatta National Hospital on 19th December 2009. A copy of her Death Certificate Serial No. 121334 is in the file. Following the demise of the Deceased, the Widower, one CHARLES MUGO RIITHO on 12th April 2012 petitioned for letters of Administration Intestate. On 8th August 2012 the four children of the Deceased filed an objection to the making of the Grant sought by the Petitioner. The objectors averred that the Deceased had died Testate having left behind a written will dated 10th February 1998.

5. The objection was heard by Hon Justice William Musyoka who in a judgment delivered on 12th July 2013 held that the document dated 10th February 1998 was a valid testamentary instrument. Accordingly a Grant of Probate with written Will dated 12th July 2013 was issued to the four children of the Deceased namely, Kenneth Anthony Riitho, Jeanne Watetu Riitho, Nicholas Gakuya Riitho and Irene Wanja Riitho. The Grant was thereafter confirmed on 30th April 2014. The estate was to be distributed in accordance with the Will of the Deceased dated 10th day of February 1998 (except for Clause (c) which was not available for distribution). Therefore, the Applicants and the Respondents herein are all the children of the Deceased and are the Administrators and beneficiaries of her estate.

6. One of the properties left behind by the Deceased was Plot No. 15003/25 Garden Estate (hereinafter the ‘suit property’) which property comprised of land measuring 0. 382 Hectaretogether with a dwelling house and improvements thereon.

7. Due to zoning regulations by the Nairobi County Government, which only permits one (1) dwelling house per 0. 2 hectares, the suit property could not be subdivided and shared amongst the beneficiaries. As a result to date the said property remains undistributed.

8. The Applicants aver that the said property has been valued four (4) times with a view to selling it but due to a dispute between the Applicants and the Respondents regarding the value of said property it has not been sold to date. That the Respondents oppose the sale of the suit property and have indicated their intention to ‘buy out’ the Applicants share of the suit property but to date the Respondents have not been able to raise the money required to buy out the Applicants.

9. The Applicants by this summons now pray that the court appoint an independent valuer since it has been over two (2) years since the last valuation was conducted and the property is likely to have appreciated in value. That thereafter the suit property should be sold to the highest bidder and the proceeds of sale be distributed equally amongst all the beneficiaries named in the Will.

10. Vide the Replying Affidavit dated 3rd August 2021 the Respondents assert that they have always been ready and willing to have the estate distributed but insist that the beneficiaries should obtain the best price and commercial benefits of the suit property. The Respondent submit that there has been no accurate valuation of the suit property and express apprehension that if the property is disposed of in a hasty manner then the beneficiaries stand to be prejudiced as they may not realize the true commercial value of the suit property. The Respondents pray that they be afforded the opportunity to market the suit property in order to obtain the best value for the same to the benefit of all the beneficiaries. They urge the court to dismiss the summons.

ANYALSIS AND DETERMINATION

11. I have considered this summons, the Affidavit in reply as well as the submissions filed by both parties. The only issue arising is whether the prayer to have the suit property valued and sold ought to be granted.

12. It is manifest that the Applicants and the Respondent who are joint administrators of the estate of the Deceased are unable to agree on the value of the suit property. Several valuations have been conducted by different valuers. Advent Valuers instructed by the 1st Applicant returned a valuation of 75 million, Bel Air Properties appointed by the 2nd Applicant gave a value of Kshs 40. 5 million. Transnational Valuers & Estate Agents instructed by the 1st Respondent valued the property at Kshs 55 million and finally Amazon Valuers instructed by an external valuer returned a valuation of Kshs 60 million.

13. Clearly, there exists a wide disparity between the various valuations provided for the suit property.

14. I note that the Grant issued to the parties herein was confirmed on 26th September 2014 and the certificate of confirmation of Grant was thereafter rectified on 9th March 2016. It is a matter of concern that five (5) years down the line the Administrators have been unable to distribute this asset.

15. It is a fact that property prices do fluctuate given the prevailing economic situation at any given time amongst other factors. In the circumstances, the ‘true commercial valuer’ of the suit property will be largely dependent on when the sale is taking place. The sale cannot be put on hold indefinitely until a price which meets with the approval of the respondents is negotiated. The parties have no option but to accept the best price at the particular time the property is put on the market.

16. In the interests of justice the finalization of this succession cause ought not be delayed any further. The beneficiaries are entitled to receive what is due to them and move on with their lives. Accordingly, I do allow the summons and I make the following orders: -

(1) A valuation of the suit property being Plot No 15003/25 Garden Estatetogether with the Developments thereon, be conducted within 90 days of the date of this Ruling by a Valuer to be agreed upon by the parties.

(2) in the event that parties are unable to agree on a valuer within 40 days then the Hon Deputy Registrar to appoint an independent valuer to conduct the valuation.

(3) The cost of the valuation exercise to be met by all four (4) Administrators on equal basis.

(4) After valuation the suit property to be put on the market and sold to the highest bidder.

(5) The proceeds of sale to be distributed equally between the 4beneficiaries namely:-

(i) Jeanne Watetu Kimani

(ii) Kenneth Anthony Riitho

(iii) Nicholas Gakuya Riitho

(iv) Irene Wanja Riitho

17. This being a family matter each side to meet its own costs.

DATED IN NAIROBI THIS 26TH DAY OF NOVEMBER 2021.

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

MAUREEN A. ODERO

JUDGE