[2022] KEHC 12207 (KLR)
The court found that the respondents, by managing and collecting rent from the estate property without authority from the administrators or the court, were intermeddling with the estate in contravention of sections 45 and 79 of the Law of Succession Act. The respondents' claim of dependency could only be determined...
Source-derived case information.
- Citation
- [2022] KEHC 12207 (KLR)
- Parties
- Applicant: Julia Kagwira Bundi; Applicant: Christine Kuri Bundi; Respondent: Zachary Kathunkumi Mukiira; Respondent: Lawrence Mungiiria Kirianki
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 862 of 2018
- Procedural Posture
- Succession Cause / Ruling on Application to Restrain Intermeddling and for Eviction
- Outcome
- Application allowed. Respondents ordered to vacate estate property and account for rent collected.
- Judges
- AO Muchelule
- Legal Topics
- Administration of Estates, Intermeddling With Estate, Grant of Letters of Administration, Powers of Administrator
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julia Kagwira Bundi
Applicant
Christine Kuri Bundi
Applicant
Zachary Kathunkumi Mukiira
Respondent
Lawrence Mungiiria Kirianki
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Restrain Intermeddling and for Eviction
Legal Issues
- 1 Whether the respondents are unlawfully intermeddling with the estate property contrary to the Law of Succession Act.
- 2 Whether the respondents should be restrained from managing, collecting rent, or residing on the estate property without authority.
- 3 Whether the respondents should account for rent collected from the estate property.
Ratio Decidendi
The court found that the respondents, by managing and collecting rent from the estate property without authority from the administrators or the court, were intermeddling with the estate in contravention of sections 45 and 79 of the Law of Succession Act. The respondents' claim of dependency could only be determined through a proper application under sections 26-29 of the Act, which had not been made. The technical objection regarding the affidavit was dismissed as the respondents admitted to the conduct complained of. The court held that it must act to protect the estate from intermeddling and ordered the respondents to vacate the property and account for all rent collected.
Court Disposition
Application allowed. Respondents ordered to vacate estate property and account for rent collected.
Orders
- Respondents to immediately vacate the deceased’s estate, specifically Nairobi/Block 72/xxxx in Langata.
- Respondents to, within 60 days, account to the court and applicants, by sworn affidavit, for rent received from tenants of the deceased's estate.
Full Case Text
Judgment text and source record
29 paragraphs
In re Estate of Benjamin Bundi Mukiira (Deceased) (Succession Cause 862 of 2018) [2022] KEHC 12207 (KLR) (Family) (9 May 2022) (Ruling)
Neutral citation: [2022] KEHC 12207 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Family
Succession Cause 862 of 2018
AO Muchelule, J
May 9, 2022
IN THE MATTER OF THE ESTATE OF BENJAMIN BUNDI MUKIIRA (DECEASED)
Between
Julia Kagwira Bundi
1st Applicant
Christine Kuri Bundi
2nd Applicant
and
Zachary Kathunkumi Mukiira
1st Respondent
Lawrence Mungiiria Kirianki.
2nd Respondent
Ruling
1. The deceased Benjamin Bundi Mukiira died intestate on May 4, 2018 at Nairobi. He was survived by his widow Julia Kagwira Bundi (1st applicant) and the following children:-(a)Christine Kuri Bundi (2nd applicant);(b)Rose Lilian Gatwiri Bundi;(c)Pauline Kanana Bundi;(d)David Mwicwiri Bundi; and(e)Kevin Nkumbuku Bundi.
2. The deceased’s estate comprised the following properties:-(a)Nairobi/Block 72/2xxx Langata with rental houses;(b)Meru Block 11/3xx with rental houses;(c)IR 277721/xx(d)Vehicle KBE 2xxx Toyota pickup;(e)Cash at Mastermind Tobacco Ltd; and(f)Cash at KCB, cooperative bank and central bank of Kenya.The liabilities were indicated to be Kshs 2,xxxxxx/=
3. It is not in dispute that on January 9, 2019 a joint grant of letters of administration intestate was issued to the applicants. Section 79 of the Law of Succession Act (cap 160) provides that:-“The executor or administrator to whom representation has been granted shall be the personal representative of the deceased for all purposes of that grant, and, subject to any limitation imposed by the grant, all the property of the deceased shall vest in him as personal representative.”The powers and duties of the executors or administrators of an estate of the deceased are provided under sections 82 and 83 of the act.
4. When the applicants got the grant, all the property of the deceased became vested in them. Under section 45 of the act, any other person including the respondents Zachary Kathunkumi Mukiira and Lawrence Mungiiria Kirianki, touching and/or dealing in the property that constitutes the estate of the deceased, without the authority of the applicants or the court, is an intermeddler and commits a criminal offence.
5. The respondents are the brother and nephew, respectively, of the deceased. They admit they are the ones managing “some of the assets” including Nairobi/Block 72/xxxx in Langata. They state that the deceased had taken in the 2nd respondent and his brother and settled them on his Langata property, therefore that the said respondent and his brother were dependants of the deceased. The respondents are collecting rent from the tenants of the property and applying it to, among other things, the repair of the property and to settle the hospital bills the deceased left. Legally, the issue of whether or not the 2nd respondent and his brother were depended on the deceased can only be determined following an appropriate application under sections 26, 27, 28 and 29 of the Act. As things stand, the respondents are intermeddling with the property of the deceased.
6. The instant application dated September 3, 2019 by the applicants sought that the respondents be restrained from intermeddling with Nairobi/Block 72/xxxx Langata and be ordered to vacate from the premises. The respondents took issue with the competence of the application saying that the affidavit in support of the application had not been signed by the 1st applicant but by her caretaker Samwel Waweru Gaitho. The 1st applicant stated that Samwel Waweru Gaitho was her agent and caretaker of the property whom the respondents had forced out of the property. The technicalities of the affidavit aside, the respondents admit that they are managing this property, collecting rent from the tenants and using the same for whatever reason. What they are doing offends sections 45 and 79 of the act. Once the court becomes aware of these facts, it must act under sections 47 of the act and rule 73 of the Probate and Administration Rules to protect the estate of the deceased until such time that it has been distributed to the rightful beneficiaries.
7. Consequently, I order the respondents to immediately vacate the deceased’s estate, and in particular Nairobi/Block 7 2/xxxx in Langata, and to, within 60 days, account to the court and to applicants, through sworn affidavit, for the rent so far received from the tenants of the estate of the deceased. The applicants shall have costs of the application.
8. Any party aggrieved by these orders has 30 days to appeal to the Court of Appeal.
DATED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 9TH DAY OF MAY 2022. A.O. MUCHELULEJUDGE