[2022] KEHC 1414 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

SUCCESSION CAUSE NO. 341 OF 2002

IN THE MATTER OF THE ESTATE OF

AMOTH OWIRA RAGEN (DECEASED)

IN THE MATTER OF A PETITION BY JOACHIM OWIRA AMOTH,

ERIC WANGO AMOTH AND REBMAN OWIRA AMOTH

AND

IN THE MATTER OF AN OBJECTION BY

LIVINGSTONE RAGEN AMOTH AND CORNEL RASANGA AMOTH

RULING

On 27th May 2019 the Court revoked the Grant, and also ordered the Petitioners to file the Accounts for the period when they had been the Administrators of the Estate of the late AMOTH OWIRA RAGEN.

1. By an application dated 24th June 2019, the Petitioners asked the Court to set aside the orders through which the Grant had been revoked.

2. On 30th September 2019 the Court reinstated the Grant. As the Court indicated in its ruling, the decision to reinstate the Grant was largely premised upon the fact that the dispute herein revolved around a dispute within a family.

3. In its ruling dated 30th September 2019 the Court expressed itself thus;

“3. However, as the law imposes a duty on Administrators to provide the court and beneficiaries with Accounts, I find that because the Applicants are yet to file Accounts, they have failed to discharge their obligation.

4. I now order that within the next SEVEN (7) DAYS the Administrators, who have just been reinstated, shall file and serve all other beneficiaries with a Detailed Statement of Accounts covering the entire period when they have been Administrators.

5. In the event that no Accounts are filed, in the terms spelt out herein and in the Order made on 27th May 2019, the Grant shall stand revoked for failure by the Administrators to discharge their legal mandate.”

4. On 10th March 2020, the Petitioners sought leave of the Court, so that the Affidavit which they had filed in Court, be deemed to have been filed within the time which the Court had directed. Through that application for the extension of time, the Petitioners were conceding their failure to file the Accounts within the stipulated time.

5. The Court allowed the parties an opportunity to discuss the best way forward.

6. However, after they had engaged in some discussions, the parties informed the Court that they had been unable to agree.

7. At that stage, the Petitioners had filed an affidavit which, in their view, constituted the anticipated Accounts. But the Objector had poked numerous holes into the alleged “Accounts”.

8. The Court decided to give further directions, which would govern the nature and scope of the Accounts that the Petitioners would be required to file in Court. The said directions were in the following terms;

“(a) The Administrators have 7 days more to file and serve a detailed Statement of Accounts.

(b) The said Statement of Accounts will contain, but shall not be limited to the following;

(1) Names of Tenants.

(2) Amounts paid by the tenants every month.

(3) Bank Statements reflecting the money paid in and money paid out.

(4) Reasons why any money waspaid out; to whom it was paid, and the date of each such payment.

(5) Proof of the funds currently held in the Estate Account, or to the Order of the Estate of the deceased.

(6) In respect of money paid out, there should be supporting documents such as receipts or other acknowledgement.”

9. As the Petitioners were allowed a period of 7 days to comply with those Directions, that implied that the detailed accounts ought to have been filed and served by 17th February 2020.

10. Notwithstanding the very clear directions, the Petitioners failed to comply.

11. When the case was next before the Court on 9th November 2020, Mr. Omolo Ochieng Advocate appeared for the Administrators. He explained that Mr. Jaoko Advocate, who had previously had the personal conduct of the Petitioners case, had left the Law Firm which had been retained by the Petitioners.

12. As Mr. Omolo Ochieng Advocate was just coming into the picture, he needed time to familiarize himself with the status of the case.

13. On his part, Mr. Qerbera Que Advocate pointed out that whilst the Petitioners had failed to comply with the Court’s directions, the Estate was wasting away.

14. Whilst responding to the concerns of the Objector, the Petitioners reasoned that there had, in principle, been compliance with the Court order requiring them to file and serve accounts.

15. As far as the Petitioners were concerned, the inadequacy or otherwise of the Statement of Accounts was a different issue altogether.

16. At that stage, the Court granted to the Petitioners’ Advocate, more time to enable them familiarize themselves with the case.

17. On 14th December 2020 the Objectors asked the Court to order that the Accounts which had been filed by the Petitioners, be expunged from the Court records, because they were not compliant.

18. The Petitioners drew the attention of the Court to the “Further Statement of Accounts”which they had filed.

19. Notwithstanding the Further Statement of Accounts, the parties were completely unable to reach a consensus on how the Estate could be distributed.

20. The Court informed the parties that, because of the lack of consensus between the parties, the Court may be compelled to substitute the Administrators of the Estate.

21. The threat of the possible substitution of Administrators appears to have stirred the Administrators to call for a meeting of the beneficiaries.

22. But the Objectors felt that there was a need to put in place, a new team of Administrators, because those who were in place had not even managed to file and serve a detailed Statement of Accounts, yet they had had at least 18 months to do so.

23. The Petitioners suggested that one of the Objectors should join the Petitioners, and become one of the Co-Administrators of the Estate.

24. Although the objectors were not averse to the suggestion, their view was that whoever is appointed as Administrators should provide information, backed with supporting documents such a Bank Statements, Receipts and Tenancy Agreements.

25. As the current Administrators had failed to provide the detailed Statement of Accounts, backed with supporting documents, it was the Objectors’ position that the Administrators had to be substituted. In effect, the Objectors were pushing for the revocation of the appointment of the current Administrators.

26. Notwithstanding the stance taken by the Objectors, I commend the beneficiaries for having the maturity to agree to participate in a meeting which would have the possibility of building consensus on how the Estate ought to be distributed. The said meeting was scheduled for 19th December 2020.

27. In an endeavor to safeguard the Estate, the Court did direct that all money which is being received in the form of rents, be deposited in the Estate Bank Account, at the Standard Chartered Bank; Kisumu Branch.

28. The Court further directed the Administrators to notify all tenants who occupy housing units that are part of the Estate, that the said tenants must deposit their rents into the Estate Account.

29. On 25th January 2021, the Objectors informed the Court that the Administrators were still collecting rents.

30. But the Administrators denied the contention that they were receiving rents.

31. The Court extended the orders made on 16th December 2020, so that the Estate could be preserved.

32. And, with the concurrence of the parties, the dispute was referred to Mediation.

33. On 15th November 2021, the Objectors informed the Court that the Mediation had failed, as the Administrators did not attend any of the scheduled sessions.

34. The Petitioners confirmed that they did not attend the Mediation Sessions. But the Petitioners told the Court that they were ready to file Summons for Confirmation of the Grant.

35. According to the Petitioners, there had been an agreement between the beneficiaries, concerning the distribution of the estate.

36. The Respondents expressed the view that until the Estate is clearly identified, it would not be possible to have it distributed.

37. When the Administrators indicated that the List of the properties comprising the Estate had already been provided, it became obvious that there were certificates of official searches which could authenticate the assets that make up the Estate.

38. Nonetheless, Mr. Ochieng Advocate submitted that the parties herein need to take action on the basis of good faith.

39. It was the understanding of the Administrators that although they might have failed to make available documentary proof of the quantum of money they had received and that which they had disbursed, it should be possible to have the Estate distributed, as the beneficiaries were in agreement.

40. Pursuant to Section 83of the Law of Succession Act, the Personal Representatives have a duty to produce, to the Court;

“………. a full and accurate inventory

of the assets and liabilities of the

deceased, and a full and accurate

account of all dealings therewith up

to the date of the account.”

41. The said task is supposed to be undertaken within 6 months from the date of the Grant.

42. Secondly, if the Court required the Administrators to provide the full and accurate inventory of the assets and liabilities of the estate; (whether that requirement arises on an application by any interested party or on the court’s own volition), the Administrators are obliged to comply.

43. In this case, I find that the Administrators failed;

(a) to produce a full and accurate inventory of assets and liabilities, together with a full and accurate account of all dealings therewith, within 6 months from the date of the Grant; and

(b) to produce the full inventory of assets and liabilities, together with a detailedand accurate Account, in Compliance with the express orders of the court.

44. In the absence of a full and accurate Account from the Administrators, the Court cannot make orders for the distribution of the estate.

45. The requirement to render accounts to the Court and to the beneficiaries is a statutory duty. Whether or not any interested party files an application, the Administrators have a statutory obligation to provide full and accurate accounts.

46. In this case, the Administrators have failed to discharge their said duty. For that reason, and in exercise of the mandate bestowed upon the Court pursuant to Section 76 (d) (iii)of the Law of Succession Act, I hereby revoke the Grant that had been issued to the Petitioners.

47. The Administrators legal obligation to file complete and accurate Accounts remains in place, notwithstanding the revocation of the Grant. Accordingly, the said Administrators are directed to file and serve the complete and accurate Statement of Accounts within the next 30 Days. The said Accounts must be accompanied with supporting documents, such as Bank Statements; Lease Agreements; Receipts; Invoices; and Certificates of Official Search.

48. In order to verify compliance, the Court will mention the case immediately after the lapse of the 30 Days period.

49. For avoidance of any doubt, the Administrators are reminded that the Accounts must incorporate the details which were set out by the Court on 14th February 2019.

50. The documents which had been filed by the Administrators failed to meet the threshold which the Court had set.

51. As regards costs of the application dated 8th November 2019, I order that the same be paid by the Administrators personally, to the Objector.

DATED, SIGNED AT DELIVERED AT KISUMU

THIS 14TH DAY OF MARCH 2022

FRED A. OCHIENG

JUDGE