[2022] KEHC 12502 (KLR)

In Re Estate of Appoloniah Apondi (Decesead) (Succession Cause 262 of 2009) [2022] KEHC 12502 (KLR) (7 June 2022) (Ruling)

Neutral citation: [2022] KEHC 12502 (KLR)

Republic of Kenya

In the High Court at Busia

Succession Cause 262 of 2009

JR Karanja, J

June 7, 2022

IN THE MATTER OF THE ESTATE OF APPOLONIAH APONDI (DECEASED)

Between

Kenneth Tillah Mukasa

Applicant

and

Noel R.O Sikhukhulo

Objector

Ruling

[1]The subject grant of letters of administration respecting the estate of the late Appoliniah Apondi (deceased) was in the first instance issued to Noel RO Sikhukhula, Fredrick Onyango Sikhukhula and Kenneth Tillah Mukasa, being the persons who had petitioned for the grant which was effectively issued on December 3, 2009 and confirmed rather belatedly on October 6, 2010, with the issuance of the necessary certificate of confirmation of grant which was rectified on the June 3, 2013, to include additional estate property. A fresh certificate of confirmation of grant was issued accordingly.

[2]Apparently, as time passed the petitioner Fredrick Onyango Sikhukhulo passed on and was seemingly replaced by John Godfrey Wanyama on the basis of a consent order dated March 2, 2016, which had the effect of revoking the original grant together with the accompanying certificate of confirmation of grant. It is instructive to note that the consent was made three years or so, after the original grant had been confirmed. Accordingly, John Godfrey Wanyama, Kenneth Tillah Mukasa and Noel R O Sikhukhulo were formally appointed as the three administrators of the estate.Having so been appointed, the next step was for them to obtain a fresh formal grant of letters of administration intestate and then apply for its confirmation within the prescribed period of time or any shorter period as the circumstances indicated.

[3]Sadly, this very important requirement was not under taken by the three administrators, or either one of them. Indeed, they embarked on a prolonged dispute prompted by their disagreement on the manner of implementing the terms of the consent order particularly with regard to collection of rent respecting part of the estate property.All these, led to an application dated July 25, 2016 for contempt of court and restraining orders against Noel R O Sikhukhulo (herein third petitioner/respondent) by Kenneth Tillah Mukasa (herein, first petitioner/ applicant)Accordingly, a temporary injunction was issued against the third petitioner/respondent pending interparties hearing of the application and on September 21, 2016, the court ordered that the “status quo” be maintained pending taking of accounts and distribution of the estate and that in the application for confirmation of grant dated September 17, 2016 be fixed for hearing on February 15, 2017 with the applicants being at liberty to move against the respondent, Noel R O Sikhukhulo, if he failed to obey the court orders.

[4]On February 15, 2017, the application or confirmation of the grant was adjourned to May 9, 2017 but was again adjourned to August 2017, November 2017 and eventually to the February 28, 2018 when the parties appeared in court and indicated that they were in the process of agreeing on the distribution of the estate. This promoted a mention date on May 21, 2018 and further mentions in October 2018, November 2018, February 2019, June 2019, August 2019, November 2019 and eventually on January 28, 2010, when the parties requested for a hearing date presumably of the application for confirmation of grant dated September 17, 2016 and were given July 1, 2020, on which date the matter never proceeded and was apparently stood over generally due to the absence of the parties and their advocates.To date, the application remains pending and appears to have taken a back seat in favour of subsequent applications including the application dated July 17, 2020, for the enjoinment of one Jignesh Kumar Patel as an interested party and respondent in this matter among other things.

[5]This was followed by another application dated August 4, 2020, for contempt of court against the respondent therein.Both applications dated July 17, 2020 and August 4, 2020 were apparently compromised by a consent order made on December 15, 2020, to the effect that all the administrators and all the beneficiaries are injuncted from interfering with the estate by way of sale, lease or commencement of any fresh construction until the determination of the matter. The February 10, 2021, was stated as the hearing date for distribution, meaning the pending application for confirmation of grant dated September 17, 2016, but the date was later forwarded to March 25, 2021 and then to the May 12, 2021, when the matter was listed for mention and pushed further to July 6, 2021 for mention on the way forward on which date the court was notified that the parties intended to file a fresh application for confirmation of grant. Nothing was mentioned about the fate of the pending application dated September 17, 2016.

[6]When the matter was mentioned on September 28, 2021, the parties requested for more time to file a fresh application for confirmation of grant. They were indulged by the court and this led to a series of mentions up to March 15, 2022, when the parties indicated that a fresh application for confirmation of grant dated January 11, 2022, had been filed.The application was fixed for hearing on May 31, 2022, but the third petitioner/objector filed an affidavit of protest dated February 4, 2022, which was argued by way of written submissions which were filed by the parties through Abalo & Co Advocates and Bogonko, Otanga & Co Advocates.

[7]The record shows that all the foregoing actions of mentioning the matter several times and filing several applications including those for confirmation of grant had been an exercise in futility as there exists no formal grant of letters of administration intestate for purposes of confirmation or otherwise.Indeed, the present application refers to an amended grant of letters of administration issued to the three administrators vide the consent order dated November 2, 2016. There is no such amended grant in the record nor any grant issued vide the consent order of the March 2, 2016. Without such grant, this application and similar pending application dated September 17, 2016, are not only incompetent but misconceived and fatally defective for want of a valid and formal grant of letters of administration intestate.

[8]As the position stands, there is no existing grant authorizing the three administrators to administer the estate of the deceased given the fact that the original grant was revoked by the consent order of the March 2, 2016 and a fresh grant was to be issued in favour of the three administrators, but it has not to date been issued. So what the administrators have been doing with the estate property since the March 2, 2016 amounted nothing to short of intermeddling with estate property which carries with it criminal liability.Be that as it may, it is clear from the record that all along the intention of the three administrators has been to have the estate distributed to all the beneficiaries without much delay, but their efforts have been met with obstacles created by their disagreements on the mode of distribution.

[9]Such disagreements do not benefit any of the beneficiaries but serve to delay the distribution of the estate and cause much stress and anxiety upon the beneficiaries of the estate inclusive of the three administrators. In order to put to an end this state of affairs and pursuant to rule 73 of the Probate & Administration Rules, it is hereby ordered that a fresh grant of letters of administration intestate do issue forthwith in the names of the three administrators (applicants and respondent) and be confirmed within the next four (4) months from this date hereof subject to an agreed mode of distribution. In default of such agreement, the matter shall be referred to the public trustee to undertake the necessary distribution of the estate amongst the listed beneficiaries in accordance with the law.Ordered accordingly.

J.R. KARANJAHJ U D G E[DATED & SIGNED THIS 7TH DAY OF JUNE 2022]