[2024] KEHC 14193 (KLR)
The court found that Japhet Omboko Makoba is liable to remit KES 6,300,000, being ½ of the rent collected from estate property, to the estate account within 30 days, failing which the amount will be recovered from his share of the estate. He must also indemnify other beneficiaries against any claims by the estate of...
Source-derived case information.
- Citation
- [2024] KEHC 14193 (KLR)
- Parties
- Beneficiary: Japhet Omboko Makoba; Executor: Janepher Nyapela Makoba; Executor: Anthony Francis Makoba; Beneficiary: Margaret Musyawa; Interested Party: Kakai Mugalo & Company Advocates
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 304 of 2014
- Procedural Posture
- Succession Cause / Post Confirmation of Grant; Directions on Distribution and Accounting
- Outcome
- Directions issued for accounting, compliance, and further mention; no final distribution order until compliance.
- Judges
- G Mutai
- Legal Topics
- Succession of Estates, Distribution of Assets, Executor Duties, Beneficiary Liabilities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Japhet Omboko Makoba
Beneficiary
Janepher Nyapela Makoba
Executor
Anthony Francis Makoba
Executor
Margaret Musyawa
Beneficiary
Kakai Mugalo & Company Advocates
Interested Party
Procedural Posture
Succession Cause / Post Confirmation of Grant; Directions on Distribution and Accounting
Legal Issues
- 1 Whether Japhet Omboko Makoba is liable to account for and remit rent collected from estate property to the estate account.
- 2 Whether the estate of Anne Atemo Makoba should bear costs claimed by Kakai Mugalo & Co. Advocates for the sale of estate property.
- 3 Whether the distribution of the remaining estate assets should proceed as per the confirmed grant and consent order.
Ratio Decidendi
The court found that Japhet Omboko Makoba is liable to remit KES 6,300,000, being ½ of the rent collected from estate property, to the estate account within 30 days, failing which the amount will be recovered from his share of the estate. He must also indemnify other beneficiaries against any claims by the estate of Leo Franz Brandenberg regarding unauthorized use of rent proceeds. Regarding costs claimed by Kakai Mugalo & Co. Advocates, the court held that there was no advocate-client relationship between the firm and the deceased, and no justification had been provided for charging the estate. The firm is directed to file an affidavit with supporting evidence for its claims within 14...
Court Disposition
Directions issued for accounting, compliance, and further mention; no final distribution order until compliance.
Orders
- Japhet Omboko Makoba to deposit KES 6,300,000 into the estate collection account within 30 days, failing which the amount will be recovered from his entitlement to the estate.
- Japhet Omboko Makoba to indemnify other beneficiaries against any claims by the estate of Leo Franz Brandenberg regarding unauthorized use of rent proceeds.
Full Case Text
Judgment text and source record
31 paragraphs
In re Estate of Anne Atemo Makoba (Deceased) (Succession Cause 304 of 2014) [2024] KEHC 14193 (KLR) (5 November 2024) (Ruling)
Neutral citation: [2024] KEHC 14193 (KLR)
Republic of Kenya
In the High Court at Mombasa
Succession Cause 304 of 2014
G Mutai, J
November 5, 2024
Between
Ja[het Omboko Makoba
Beneficiary
and
Janepher Nyapela Makoba
1st Executor
Anthony Francis Makoba
2nd Executor
and
Kaki Mugalo & Company Advocates
Interested Party
Ruling
1. The grant in respect of the deceased’s estate was confirmed on 26th October 2022. The court identified the beneficiaries of the deceased’s estate as being Janepher Nyapela Makoba, Anthony Francis Makoba, Japhet Omboko Makoba and Margaret Musyawa. Each beneficiary got ¼ of the estate. The assets forming the estate were listed in the Certificate of Confirmation of Grant.
2. The basis upon which the court confirmed the grant was the consent entered into by Janepher Makoba, Anthony Makoba, Akanga Alera & Co Advocates and the firm of Kakai Mugalo & Co. Advocates who acted for the estate of Leo Franz Brandenberg, the former husband of the deceased. The latter was involved in the litigation surrounding this estate as he co-owned some assets with the deceased pursuant to a judgment entered by the Court in a matrimonial property cause.
3. From a careful perusal of the file, it would appear to the court that what remains outstanding at this point is the distribution of the following assets to the deceased’s beneficiaries: -a.½ share of Lamu/Mpeketoni/Plot No 85;b.½ share of Lamu/Mpeketoni/Plot No 136;c.½ share of Lamu/Mpeketoni/Plot No 137;d.½ share of Lamu/Mpeketoni/Plot No 156;e.½ share of Lamu/Mpeketoni/Plot No 157;f.½ share of Lamu/Mpeketoni/Plot No 161;g.½ share of Title No. Lamu/Lake Kenyatta/726;h.Whole of Lamu/Lake Kenyatta/2697
4. In the consent signed on 31st August 2022, it was agreed that Japhet Omboko Makoba owed the estate of the deceased ½ the rent collected from 9th February 2016 to 31st December 2021, which amount is now reckoned to be Kes 6,300,000/-. He owes a similar amount to the estate of Leo Franz Brandenberg (deceased). Japhet Omboko does not deny this.
5. Based on what is stated in paragraph 4 above, this court directs that Japhet Omboko Makoba deposits the same into the estate collection account within 30 days of the date hereof, failing which the said amount shall be recovered from his entitlement to the remaining of the estate. In addition, he will be required to indemnify the other beneficiaries against any claims that the estate of Leo Franz Brandenberg may have in respect of its share of the rent proceeds utilized by Japhet Omboko Makoba without authorization.
6. Regarding the amount due to the estate from the sale of Plot No MN/1/1056, the court has reviewed the tabulation made by Kakai Mugalo & Co. Advocates. The court notes that the said firm of advocates represented the deceased’s husband and not the deceased. That notwithstanding, the cost of the transaction has been transferred wholly to the estate of the late Anne Atemo Makoba (deceased). I do not think there was an advocate/client relationship between the said law firm and the deceased, nor has a justification been provided for this.
7. To enable the court to determine if the said costs are lawful, the firm of Kakai Mugallo & Co. Advocates is hereby directed to file an affidavit by its partner annexing or providing: -a.Evidence of instructions issued by the deceased to the said firm of advocates;b.Agency agreement, and evidence of payment of agency commission;c.Evidence of payments for auctioneer’s charges, disbursements, police hire charges, valuation fees and burial expenses. Justification for condemning the estate of the deceased to pay for this, as opposed to the instructing client doing so, should be provided;d.Evidence that the four parcels of land in Mpeketoni were forfeited by Leo Franz Brandenberg to the estate and the current valuation of the same;e.The fate of Toyota Harrier KBA 053C; andf.Justification for having the estate of the deceased pay for the travel costs of Kakai Kissinger, advocate.
8. I direct that the said affidavit be filed within 14 days. Upon filing the affidavit, the executors shall have 7 days to file an affidavit in response.
9. Mention to confirm compliance and for further direction on 2nd December 2024.
10. As this is a family matter, each party shall bear its own costs.
11. Orders accordingly.
DATED AND SIGNED AT MOMBASA THIS 5TH DAY OF NOVEMBER 2024. DELIVERED VIRTUALLY VIA MICROSOFT TEAMS.Gregory MutaiJUDGEIn the presence of: -Janepher N. Makoba, (pro se litigant) (present);Mr Ahmed, holding brief for Mr Akanga, for Japhet Makoba;Ms Buchocho, holding brief for Mr Mugallo for the estate of Leo Franz Brandenberg;Arthur – Court Assistant.Page 3 of 3