[2022] KEHC 1440 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENAY AT NAKURU

SUCCESSION CAUSE NUMBER 866 OF 2012

IN THE MATTER OF THE ESATE OF THE LATE ELIJAH KIMEMIA WANGUKU (DECEASED)

ESTHER WAITHIRA KIMEMIA.........................................APPLICANT

VERSES

ROBERT MAINA KIMEMIA.............EXECUTOR/1ST RESPONDENT

SIMON KIMEMIA......................................................2ND RESPONDENT

R U L I N G

1. The applicant Esther Waithira Kimemia, the widow to the deceased herein, moved this Honorable Court vide Chamber Summons dated the 22nd of May 2020 and brought pursuant to Sections 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules seeking the following orders:

(a) THAT this court be pleased to order that the parcel of land known as L.R. NO. 6585/12/11 now Nyahururu Municipality Block 6/29 be sold and the proceeds of the sale be shared equally among the beneficiaries herein.

(b) THAT the cost of this Application be provided in the cause.

2. The application is supported by the affidavit of the ESTHER WAITHIRA KIMEMIA, sworn on 22nd May, 2020. The applicant avers that suit property L.R. NO 6585/12/11 now Nyahururu Municipality Block 6/29 is pending distribution and this court vide its ruling dated 8th October, 2019 found that the said parcel of land formed part of the deceased’s properties and the same was available for distribution.

3. That the beneficiaries are unable to agree on the mode of distribution of the said property and therefore the same should be sold and the proceeds of the sale be shared equally among them.

4. She avers that she is elderly and doesn’t want her children to keep fighting over the said property. Her desire is to ensure the beneficiaries enjoy their respective share of the estate peacefully and for their personal gains. She contends that this application has been made in good faith and none of the parties will be prejudiced if the instant application is allowed as prayed by this court.

5. The application is opposed by Simon Kimemia vide his Replying Affidavit sworn on 11th June, 2020.

6. He avers that the application is premature as the beneficiaries of the estate have at no time met to discuss the fate of the property Nyahururu Municipality Block 6/29, that the property in question has been part of the estate of the deceased for decades and he had never intended it to be sold and that it would be unfair for future beneficiaries not to have anything to inherit on account of their patriarch’s properties having been sold.

7. He contends that the wishes of the deceased were not to have his properties disposed off. That the plot in question consists of developments that are income generating as it consists of four (4) shops and a building with twelve (12) units that can be let out and that two of the shops have already been let out to tenants by the executor/administrator Mr. Robert Kimemia who collects rent. He is not agreeable to having the property sold as he is interested in a shop and a back store in the property for his personal business and would wish the same be given to him.

8. The application is also opposed by Robert Maina Kimemia, the executor/respondent herein vide his Replying Affidavit sworn on 26th June, 2020.

9. He avers that the application is frivolous, vexatious, meritless, and an abuse of the court process meant to circumvent and offend the inherent powers of the court and does not in any way whatsoever deserve the discretion of the court.

10. That he was dissatisfied with the court Ruling and preferred an appeal against the court’s Ruling vide Notice of Appeal prepared and duly filed in court on 22nd October 2019.

11. That the intended appeal has immense good chances of success wherein the court ought to consider the adversarial claims by both parties herein pertaining the suit property subject matter herein. That in any eventuality, if the application herein is allowed and the orders sought granted the intended appeal shall be rendered nugatory and merely academic; he stands to suffer irreparably immense loss and damages.

12. That in furtherance to the same the residual estate of the deceased has no income generating assets and as such if the application herein is allowed, it will technically render the estate of the deceased without any substantive incoming generating venture and or assets to in any eventuality cushion the beneficiaries and him against unprecedented debts and or economic hardship.

13. That the subject matter herein is part and parcel and at the heart of the business trustees’ wherein audit reports in the court record verily showed that the suit property hosts businesses of immense reputation owning both assets and liabilities.

14. That disposition of the suit property while the appeal is nigh by dint of Notice of Appeal having been filed will be against the doctrine of lis pendenswhich presupposes sustaining suit item pending determination of adversarial claims.

15. That this Honourable Court has discretion to make such favourable orders as a matter of policy so as to meritoriously and justly facilitate determination of his appeal.

16. The applicant swore a Further Affidavit on 14th January, 2020. She avers that she is not aware of any stay orders granted to the executor barring the distribution of Nyahururu Municipality Block 6/29. She contends that she is eighty-six (86) years old, sickly and her wishes is to have issues relating to the deceased’s estate resolved during her lifetime.

17. That it is not possible to divide the said property among all the beneficiaries to run business on the said property because it’s too small for subdivision.

18. That the executor who has since leased out the property to tenants does not share the rental income with the other beneficiaries and he treats the entire income as his own and in the interests of justice that said property should be sold and proceeds shared equally.

19. She annexed a copy of the consent Marked EWK 2 evidencing that all the other beneficiaries have agreed to the disposal of the said property.

20. The application was canvassed through written submissions. Respondents’ Submissions are not on record.

21. The Applicant filed her Submissions dated 26th May, 2021 on 28th May, 2021. She argued that the executor filed Notice of Appeal which appeal has not been heard. That record of appeal has not been prepared and there is no order for stay of execution in this matter.

22. It is further submitted that the property in question measures 0. 0697 Hectares and cannot be reasonably shared amongst the 12 beneficiaries of the estate and the only reasonable proposal would be to value the property, sell the same and proceeds thereof shared among the beneficiaries.

23. I did not see the respondent’s submissions.

ISSUES FOR DETERMINATION

24. Having considered the application herein, affidavit in support, a replying affidavit, further affidavit and submissions filed, the issues that stand out for determination are:-

(I) Whetherin the circumstances of this case, the applicant has made up a case for being granted the order soughtherein.

(II) If not what should be the fate of the said property.

(I) Whether in the circumstances of this case, the applicant has made up a case for being granted the order sought herein.

25. The court’s Ruling delivered on 8th October, 2019 pointed out that the Applicant and the 1st Respondent were appointed in the deceased’s will as business trustees with clear duties and obligations of the estate, the business and the premises on which it ran remained property forming part of the estate and thus the Property No. Nyahururu Block 6/29 was available for distribution.

26. The 1st Respondent was aggrieved by this decision and he lodged a Notice of Appeal before the Court of Appeal on 22nd October 2019. To date he has filed neither no Record of Appeal nor Memorandum of Appeal and no reasons have been given for this inaction. He has evidently not demonstrated any desire to pursue the appeal by complying with the law with respect to the same. Neither has he filed any application seeking stay of execution.

27. The deceased herein made a will dated 1st July 1984. In that will at paragraph 7 he set out the manner in which this property would be dealt with. That will was not contested, and a Certificate of Confirmation of Grant was made on the 30th July 1986 to Barclays Bank Trust Company Limited and Robert Maina.

28. On the 26th January 2016, this Court gave orders the effect of which were that Robert Kimemia became the sole executor of the will.

29. On the 17th December 2018 the said Robert Maina Kimemia filed Summons for Confirmation of Grant of even date under Rule 40(1) of The Probate and Administration Rules and Section 71 of the Law of Succession Act. In the Supporting Affidavit he made proposals to distribute what he considered to be the estate of the deceased. In that distribution he left out the property under discussion and which was the subject of the Ruling by Justice A. K Ndung’uof 8th October 2019 i.e. LR 6585/12/11 III also known as Nyahururu Municipality Block 6/29.

30. There appears to have been a partial confirmation by consent in which the Grant was confirmed in terms of ‘paragraph 6 of the executor’s and paragraph 4(a) of the affidavit of Susan Wairimu Githinji’.Parties did not supply a copy of the Certificate of Confirmation of Grant, no copy was available in the court file so I could not tell how the rest of the estate was distributed.

31. It is evident that on this property the beneficiaries are in dispute. There are premises and there was a business. The deceased’s widow wants the property sold, there are those among the beneficiaries who want to inherit the business. There are those who want the business to remain as part of the family. In disposing of the property the parties are still bound by the deceased’s will. The 1st respondent in his Replying Affidavit has shown his disapproval on the mode of distribution proposed by the applicant. It is his position that the property herein is income generating asset and it hosts businesses of immense reputation owning both assets and liabilities. The second respondent on his part is also not amenable to the proposed mode of distribution.

32. The way forward is to have the property valued. Upon valuation those who want to keep the property can buy the others out and if that fails then the same can be sold and proceeds dealt with in accordance with the deceased’s will.

33. I order therefore that the applicant and/or the executor of the will do appoint a valuer in respect of L.R. NO. 6585/12 III now Nyahururu Municipality Block 6/29 to avail a valuation report to court within sixty (60) days hereof.

34. In default of 33 above the County Valuer in which the property falls to carry out the valuation and file the report within sixty (60) days of service of the order.

35. The application is allowed to that extent.

36. This being a family matter each party to bear their own costs.

DATED, SIGNED AND DELIVERED AT NAKURU THIS 17TH DAY OF MARCH, 2022.

MUMBUA T MATHEKA J

JUDGE

In the presence of;

CA Edna

Murunga holding brief for Cheloti for respondent

Waiganjo for beneficiaries