[2022] KEHC 11258 (KLR)

In re Estate of Andrew Mungai Muthemba (Deceased) (Succession Cause 2501 of 2003) [2022] KEHC 11258 (KLR) (Family) (18 July 2022) (Ruling)

Neutral citation: [2022] KEHC 11258 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 2501 of 2003

AO Muchelule, J

July 18, 2022

IN THE MATTER OF THE ESTATE OF ANDREW MUNGAI MUTHEMBA (DECEASED)

Between

Jane Njeri Mungai

1st Applicant

David Mungai Muthemba

2nd Applicant

and

John Mungai Muthemba

1st Respondent

Evanson Kaburu Mungai

2nd Respondent

and

Troy Medicare Pharmacy Ltd

Interested Party

Ruling

1. On December 20, 2021this court revoked the appointment of the 1st applicant Jane Njeri Mungai and the 2nd applicant David Mungai Muthemba as administrators of the estate of their father Andrew Mungai Muthemba who had died intestate on August 3, 2003. The deceased had left two widows: - Joyce Wairimu Mungai who had five children (including the 2nd applicant) and the 1st applicant who had four children. When the grant was revoked the new administrators that were appointed to complete the administration of the estate were John Mungai Muthemba (1st respondent), Evanson Kaburu Mungai (2nd respondent), Ricky Muthemba Mungai and Raymond Kihiu Mungai.

2. The reasons for the revocation of the grant were the applicants’ failure under section 76(d)(ii) and (iii) of the Law of Succession Act (cap 160) to diligently proceed with the administration of the estate of the deceased and their failure under section 83(h) of the act to produce to the court, following order, a full and accurate inventory of the assets and liabilities of the deceased and an accurate account of all dealings therewith.

3. The applicants seek the review of the order revoking the grant issued against them and the appointment of the respondents and others to manage the estate of the deceased. The 1st applicant’s application was dated January 24, 2022 and her case was that she had complied with the order of April 28, 2021 that stated that, if within 30 days the administrators had not provided to court and served to the other side a full and accurate account and inventory of how the estate had been managed since the grant was issued, the grant and certificate of confirmation would stand recalled and revoked. She stated that vide a letter dated May 12, 2021, and served on the respondents, she furnished the accounts which comprised the estate audited accounts for the years December 31, 2003 to December 2020, and that no issue was raised by the respondents to the accounts. She stated that when the court in the ruling delivered in 20th December 201 indicated that by October 25, 2021 no accounts had been filed that was a mistake as accounts had been delivered. She further pointed out that the 1st respondent was a most disruptive person who was unsuitable to be appointed a co-administrator of the estate of the deceased, and gave circumstances why she thought he was not suitable. Ricky Muthemba Mungai swore an affidavit to support the application. He was of the view that his mother (the 1st applicant) was a most suitable person to administer the estate on behalf of their house. On his part, he stated that he resides in theUSA and his appointment would pose a logistical problem. His brother Evanson Kaburu Mungai and Kevin Chege Mungai were of the same view. All were vehemently opposed to the 1st respondent joining in the administration.

4. The 2nd applicant similarly sought the review of the ruling of December 20, 2021, and like the 1st applicant, sought their reinstatement as administrators of the estate. His application was dated January 20, 2022. His case was that he prepared the accounts and gave them to his then advocates who unfortunately failed to file them which led to their being removed as administrators of the estate, and their replacement. He annexed a copy of the said accounts. He was opposed to the appointment of the 1st respondent as an administrator. He called him an intermeddler and a chaos creator who was unsuitable to manage the estate. He stated that Ricky Muthemba Mungai lived out of the country and was unwilling to manage the estate. He went further to state that he and the 1st applicant were in the final stages of the administration and distribution of this complex estate, and that they should be left to do this work. He got George Njuguna a certified public accountant, to swear an affidavit to state that he was one who had prepared the accounts dated May 20, 2021 that were sought to be filed.

5. In opposing the 2nd applicant’s application, the 1st respondent stated that he was willing and capable to administer the estate of the deceased, and that if Ricky Muthemba Mungai was unwilling to administer the estate he should be removed but not with the applicants being brought back. His case was that since the appointment of the applicants the administration of the estate had been shrouded with secrecy and lack of accountability, and these were the reasons why they were removed. In any case, the failure to account cannot be blamed on the advocates. The 2nd respondent opposed the application for reinstatement of the applicants saying that for the longest period they had been seeking for them to account to the beneficiaries and it was because of the failure that the application was made in court for accounts. He gave a history of the many dates the matter came to court with the applicants being urged to account without success. He opposed the application by stating that there was no basis laid for the review of the orders of the court as no error apparent on the face of the court had been demonstrated.

6. Review is guided by order 45 rule 1 of theCivil Procedure Ruleswhich states as follows:-“(1) Any person considering himself aggrieved—(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or(b)by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.”

7. The 1st applicant deponed that she complied with the court order when on May 28, 2021 she wrote to the court forwarding the accounts, and that the court fell into error when it revoked the grant that had been issued to them. It is notable that she was administering the estate jointly with the 2nd applicant. The duty to account was therefore a joint one. The 2nd applicant swore that, in effort to comply, he together with the 1st applicant instructed an accountant to prepare the accounts. Once they were prepared they were forwarded to the advocate to file them. He did not file them in time. Both versions cannot be true. The only conclusion that can be reasonably drawn is that no accounts had been filed by the time the grant was revoked. In any case, assuming that what the 1st applicant is saying is true and noting that she was represented, one would have expected that the accounts be formally filed through an affidavit and that a mention date be caused to confirm the filing. That was not done.

8. The mistake of the advocate, if at all, is not one of the grounds that can cause review under order 45 rule 1. Further, a party who instructs an advocate does not abandon his case to the advocate. In this case when timelines were important and revocation was looming, diligence was expected on the part of the applicants.

9. The history of this case is that the applicants were appointed administrators of the estate of the deceased on March 29, 2004, and it was not until December 5, 2018 that the grant was confirmed and a certificate issued. The 2nd applicant was dissatisfied and filed an appeal which was dismissed on October 22, 2021. The deceased having died on August 3, 2003, this estate is crying for the final distribution. The applicants are equally to blame for having a grant which took forever to confirm, and the two are now litigating without an end in sight now that the 2nd applicant is looking to the Supreme Court.

10. The other consideration is that the final discretion as to who will administer an estate of the deceased lies with the court under section 66 of the Law of Succession Act. The children of the deceased have each an equal claim to the administration of the estate of the deceased. Each has an equal claim to benefit from the estate. If any of the administrators appointed wishes to opt out, let him formally apply and he will be discharged.

11. In the final analysis, I find no merit in each application which I dismiss. Each party shall bear own costs.

DATED AND DELIVERED AT NAIROBI THIS 18TH DAY OF JULY, 2022A.O. MUCHELULEJUDGE