[2023] KEHC 19988 (KLR)

In re Estate of Benjamin Githinji Ndegwa (Deceased) (Cause 117 of 2010) [2023] KEHC 19988 (KLR) (Family) (22 June 2023) (Ruling)

Neutral citation: [2023] KEHC 19988 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Cause 117 of 2010

PM Nyaundi, J

June 22, 2023

Between

Julia Muthoni Githinji

Applicant

and

Michael Ndegwa Githinji

1st Respondent

Anthony Mwangi Githinji

2nd Respondent

Administrators With will Annexed Estate of Benjamin Githinji Ndegwa - Deceased

Ruling

1. By Summons dated April 25, 2023 presented under section 82,83,94 and 95 of the Law of Succession Act and rules 44 & 73 of the Probate & Administration Rules- Cap 160 Laws of Kenya the Applicant seeks the following orders inter alia-1)Spent2)Pending service and hearing inter partes of this Application, the Honourable Court may be pleased to direct the Respondents to make a partial release of an amount of Kshs 1,300,000/- to the Applicant, from the funds held on behalf of the Estate of the late Benjamin Githinji Ndegwa3)…….8)That Costs of this Application be costs in the Cause

2. The Application is supported by the Affidavit and Supplementary Affidavit of the Applicant sworn on the April 25, 2023 and June 12, 2023 Respectively. The Application is opposed and the Respondent have sworn Affidavit on June 8, 2023.

3. The parties proceeded by way of Oral submissions on June 12, 2023 having agreed to dispense with the certificate in the first instance where in the Applicant seeks a partial release of Kshs 1. 3 million from the funds of the Estate.

Background 4. The Respondents are Co-Administrators of the Estate of the Deceased herein pursuant to Grant of Probate of Written Will issued on January 26, 2011 and Certificate of Confirmation of Grant issued on 6th December 2011. Their mother now deceased was the 3rd Administrator of the Estate.

5. By will dated November 6, 2009, the Deceased Appointed the 3 as Executors and trustees of his will. It is the expressed wish of the deceased that all his properties be transferred to his Gituamba Trust which he intended to create. The proceeds of the Trust shall be for the sole benefit of the beneficiaries of his Estate.

6. The Applicant being one of the children of the Deceased is a beneficiary of the Estate. It is common ground that at the time of his death the Deceased had not established the Trust. The Executors have since registered a trust deed and are awaiting certificate of incorporation.

7. The Application was triggered by the what the Applicant describes as her herculean financial difficulty and refusal of the Respondents to bail her out. She contends that an advance payment can be made to her based on her entitlement as a beneficiary.

8. The Respondents response is that they have accommodated similar requests in the past and right now the Estate is in financial straits and cannot meet the requests of the Applicant and the other siblings who are also facing challenges.

9. It is the Applicants submission that if the Respondents had moved with requisite diligence as required under the Law of Succession Act, this situation would have been prevented.

Analysis and Determination 10. Having considered the pleadings of Parties and the rival submissions, I discern the following as the issue for determination.a)Whether the Applicant’s application for partial release of Kshs 1,300,000 is merited.b)Who should pay costs

11. On the 1st Issue the Applicants Application as noted above was triggered by an unsuccessful application for a bail out made to the Respondents. The Respondents on the other hand plead that their hands are tied as the Estate is low on funds.

12. It is clear from the will that the Deceased intended that the assets be managed by the Executors for the benefit of the beneficiaries. It is not controverted that in their life time the deceased and his wife stepped in to support their children when faced with a financial need.

13. By virtue of their appointment the Executors now stand in the position of the Deceased in relation to the Children. It is inconceivable that a child of the deceased approaches the estate in dire need and is turned away when it is evident that there are assets that can be converted to respond to this need and the same discounted from the final allocation to the beneficiary.

14. The Applicant has pointed out and, in my view, correctly that the current situation is partly on account of the delay on the part of the Executors to proceed diligently with the administration of the Estate.

15. Section 83 of the Law of Succession Act provides inter alia that, personal representatives shall have the following duties-(g)Within six months from the date of confirmation of the grant, or such longer period as the court may allow, to complete the administration of the estate in respect of all matters other than continuing trusts, and to produce to the court a full and accurate record of the completed administration(i)to complete the administration of the estate in respect of all matters other than continuing trusts and if required by the Court, either of its own motion or on the application of any interested of any interested party in the estate, to produce to the court a full and accurate account of the completed administration.

16. The consequence of these provisions is that the Executors/ Administrators of Estates of deceased persons are required to move with diligence to administer estates and where there is delay they have a duty to alleviate the difficulty occasioned upon beneficiaries including making partial release.

17. The Executors have done this in the past in 2010, to pay fees for Cecilia Murugi Githinji and settle outstanding medical bill incurred by the deceased. In addition, following sale of some assets the proceeds were shared among the beneficiaries and some invested in property whilst the balance was deposited in a fixed deposit account.

18. It is indefensible that a beneficiary of the estate who is on her knees is being turned away in a situation where there has been a 11-year delay in finalising the administration of an estate.

19. In the circumstances I find that the Application has merit and order as followsa)The Executors recall the fixed deposit that is deposited in the name of Semi-Conductor Technologies Limited and pay to the Applicant Kshs 1. 3 million within 45 days.b)The sum of Kshs 1. 3 million to be factored in the Applicants entitlement upon final distribution of the Estatec)Each party to bear their own costsd)The Application dated 25th April to proceed by way of viva voce evidence.e)Mention on before the Deputy Registrar on 23rd of August 2023 to confirm complianceIt is so ordered

SIGNED, DATED AND DELIVERED VIRTUALLY IN NAIROBI ON 22nd DAY OF JUNE, 2023. P M NYAUNDIHIGH COURT JUDGE