[2022] KEHC 9921 (KLR)

In re Estate of Allan Stephen Mwashemu (Deceased) (Succession Cause 1722 of 2015) [2022] KEHC 9921 (KLR) (Family) (11 May 2022) (Ruling)

Neutral citation: [2022] KEHC 9921 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 1722 of 2015

AO Muchelule, J

May 11, 2022

IN THE MATTER OF THE ESTATE OF ALLAN STEPHEN MWASHEMU (DECEASED)

Between

Nashon Mwalukuku Mwashemu

Applicant

and

Mary Mwashemu Gaita

Respondent

Ruling

1. The deceased Allan Stephen Mwashemu died intestate on November 7, 2011. He was survived by his widow Rose Triza Mwashemu and the following children:-a.Mary Washemu Gaita (the respondent);b.Camillah Wakesho Mwashemu;c.Hellen Tabitha Mwashemu;d.Peninah M. Mwashemu;e.Agnes Chao Mwashemu;f.Nahashon Mwalukuku Mwashemu (applicant); andg.Robert Maghanga Mwashemu.

2. His estate comprised of Plot No. Nairobi/Block 60/178, Plot No. Nairobi Block 125/538; Mbololo/Tausa/2496; Mbololo/Mraru/3350; Mbololo/Tausa/1900; Mbololo/Tausa/305; Mbololo/Tausa/3480; Voi Municipality Block 1/496; KCB shares – 8880; Standard Chartered Bank shares – 225; Safaricom Shares – 900; and Standard Chartered bank accounts. He had no liabilities.

3. The widow, the applicant and the respondent petitioned for the grant of letters of administration intestate. The grant was issued to them on 12th June 2017. The widow died on September 10, 2015. On February 13, 2018 the applicant and the respondent applied for the confirmation of the grant, and proposed the distribution of the estate. Each property was to be shared equally among the deceased’s children. All the other children gave their consent. The grant was confirmed on May 29, 2018.

4. The present application is dated October 4, 2021 by the applicant. It seeks the preservation of the estate; an order compelling the respondent to provide accounts of the estate to date; the respondent to relinquish the legacy due to him; an order for the arrest of the respondent owing to the forgery of his signature; an order that the 20 acres comprised in Mbololo/Tausa/5176 that was excised from Mbololo/Tausa/2096 and sold by the respondent be taken into consideration while distributing the estate and/or in the alternative the title be cancelled and the parcel reverts to the original title. In support of the application, the applicant swore that the respondent had colluded with their siblings to exclude him from the administration of the estate; the respondent had failed to collect, account and distribute the estate; and she had forged his signature and used his old passport photograph to excise 20 acres from 50 acres of Mbololo/Tausa/2496 which he shad old for Kshs.3,000,000/= which she did not account. He complained to CID who are investigating the forgery. He stated that so far the administration of the estate had not been completed.

5. The respondent opposed the application and denied the claims by the applicant. She stated that, contrary to what the applicant had stated, Mbololo/Tausa/2496 had been subdivided equally among all the beneficiaries. The applicant had got his Mbogolo/Tausa/5177. The other 6 beneficiaries, her included, had decided to keep their share jointly and had disposed of half of it. She stated that the Mbololo/Tausa/5177 that the applicant said she had sold was part of the joint portion that the six siblings had retained and sold part of it. As for the rest of the estate, all the siblings, except the applicant, had agreed on how to share it, but that it was the ongoing dispute between the applicant and the rest that had delayed the sharing. The applicant claimed in his affidavit that the respondent had excluded him from rental income. Her response was that in a meeting held on 28th November 2015 over rental income from LR Nairobi/Block 125/138 it was agreed that rental income of Kshs.22,000/= would not be shared but instead goes to the upkeep of Peninah M. Mwashemu and her three children, Robert Mwashemu and the applicant. She denied the applicant’s claim that she was collecting rent form LR No. Nairobi/Block 60/178 which she said was unoccupied. She stated that the money from the two Standard Chartered Bank accounts was received by the applicant and her and the same shared among all the beneficiaries. She swore that the administrators had opened a joint account at Equity Bank to be receiving rental income. Rent for two months was received but the money went missing. She stated that the shares had not been distributed owing to the ongoing dispute. Further, that the applicant had unilaterally taken over the ancestral home on Mbololo/Tausa/3480 and denied all his siblings access. The applicant swore a supplementary affidavit to deny what the respondent had stated. He reiterated the issue of forgery and the fact that he was excluded from the administration of the estate. He stated that he had been denied access to rental income.

6. It is evident that the two administrators appointed to administer the estate of the deceased, their father, are not working together to be able to complete the administration. Each is blaming the other for this state of affairs. At least there is one common desire. In the application the applicant sought that the respondent accounts for her dealing with the estate up to the present time. In the replying affidavit at paragraph 27 the respondent asked that the applicant renders a full account of the estate since confirmation to date.

7. Under sections 79, 81, 82 and 83 of the Law of Succession Act (Cap. 160), all the property of the estate of the deceased vested in the applicant and the respondent upon their being issued with the grant of letters of administration. There were statutory powers and duties attached to the grant, and, ultimately, they were supposed to account to the court and the beneficiaries regarding every action they had taken as administrators of the estate (In re Estate of Julius Mimano (Deceased) [2019] eKLR). Upon the confirmation of the grant, they were required to distribute the estate of the deceased to the beneficiaries in accordance with the certificate of confirmation within six months of its issuance and thereafter to produce to the court a full and accurate account of the completed administration. It is evident that the administration has not been completed, and no account has been rendered.

8. The work of the administrator of an estate of a deceased is a sacred and fiduciary responsibility done to benefit the estate and its beneficiaries. Where two or more administrators have been appointed they have to work together to achieve their obligation under the grant, and ultimately distribute the estate to the beneficiaries and account to the court after the completion of the administration. Because the responsibility is that of a trustee, once an administrator finds that he cannot, given the circumstances, undertake his responsibility, he has the duty to come to court to seek to opt out. Where the court finds that the two appointed administrators cannot find agreement and work together to complete administration of the estate it can revoke the grant under section 76 of the Act and set aside the certificate to give room to willing and able administrators.

9. I have read the submissions by counsel for the parties. I have decided that instead of each administrator blaming the other, under section 47 of the Act and rule 73 of the Probate and Administration Rules, and before I consider revoking the grant issued to the two, I ask that each of them, within 60 days, provides a full and accurate account of his/her dealing with the estate from the time the certificate of confirmation was issued to date. The account should include the status of each property in the certificate, whether the parcels have been subdivided and to whom each portion has been transferred, the status of the rental income and the shares, and so on. The filed and exchanged accounts shall be served on each beneficiary and mentioned on July 20, 2022 for further directions.

10. On the allegation of forgery made by the applicant against the respondent it is enough that a formal complaint has been made to the police who have the mandate to investigate and take whatever appropriate action.

11. I ask that each party shall bear own costs.

DATED AND DELIVERED NAIROBI THIS 11THDAY OF MAY 2022. A.O. MUCHELULEJUDGE