[2022] KEHC 10146 (KLR)

In re Estate of Bernand Mukhove Barasa (Deceased) (Succession Cause 757 of 2015) [2022] KEHC 10146 (KLR) (13 May 2022) (Ruling)

Neutral citation: [2022] KEHC 10146 (KLR)

Republic of Kenya

In the High Court at Kakamega

Succession Cause 757 of 2015

WM Musyoka, J

May 13, 2022

IN THE MATTER OF THE ESTATE OF BERNAND MUKHOVE BARASA (DECEASED)

Ruling

1. The application for determination is the summons dated 10th May 2021. The same seeks two prayers. One, that one of the administrators, Agnes Lamwenya Barasa, be ordered to file a full and accurate inventory of the assets of the estate of the deceased, and to render account of her handling of the estate to the court. Two, that the court declares that the said administratrix has intermeddled with the estate, and an order should issue to restrain her from further acts of intermeddling, failure to which she should be punished.

2. The application is made at the behest of Mildred Nawanjaya Barasa, one of the other administrators, and James Soido Barasa, who is described as an objector, and I shall refer to both as the applicants. The grounds upon which the application are premised are set out on its face, and the facts are deposed in the affidavit in support sworn on 10th May 2021 by the two. I shall refer to Agnes Lamwenya Barasa as the respondent. The respondent is accused of failing to cooperate in the administration of the estate, and of failing or neglecting to disclose or give a full and accurate inventory of all the assets and liabilities of the estate. She is also accused of neglecting or misapplying the assets of the estate by disposing of them to third parties. She is also accused of concealing or withholding information regarding the estate.

3. The applicants aver, in their affidavit, that Mildred Nawanjaya Barasa and Richard Waudo Barasa were administrators appointed in 2017. It is stated that at those initial stages, the respondent got into the habit of filing numerous objections, which were usually determined against her. It is averred that even before she was appointed as one of the administrators, she had sold some of the assets of the estate, forcing the administrators, who were then in office, to file a suit against her at the Environment and Land Court. In that suit, she allegedly conceded to have had sold property to third parties, but refused to disclose the land sold and the persons who had allegedly bought it. It is avered that the respondent knew the assets of the estate, by dint of having been a wife of the deceased, but she had not cooperated to give a full inventory of the assets and liabilities of the estate, and because of that the other administrators are unable to know the full extent of the estate. It is argued that it will be after that is done, that the court will be in a position to know the full extent of the estate, for distribution purposes. It is averred that the respondent enjoys a life interest over the estate but then that does not at all give her exclusive power to alienate and distribute the estate.

4. The applicants have attached several documents to their affidavit. There is a copy of an amended grant of letters f administration intestate, issued on 31st July 2017, showing the administrators to be the respondent, Mildred Nawanjaya Barasa and Richard Waudo Barasa. There is a copy of a sale agreement on a Butsotso/Indangalasia/236, executed on 24th October 2013, between the respondent and one Kenneth Luseno Andayi. There is also a copy of a plaint, filed in Kakamega Cmc Mcl&e No. 1018 of 2018, between Mildred Nawanjaya Barasa and Kennedy Luseno, over Butsotso/Indangalasia/236.

5. The respondent has reacted to the application, through her affidavit sworn on 7th July 2021. She asserts to be a widow of the deceased, and her co-administrators to be her children. She asserts further that as a widow of the deceased, she had a prior right to administer the estate of her late husband. She states that she married the deceased in 1977, as a second wife, and was settled on Butsotso/Indangalasia/236, which she developed extensively, jointly with the deceased. She avers that after the demise of the deceased in 2011, she was forcefully ejected from the house by the applicants, who then moved in with their spouses. She accuses the applicants and their siblings of efforts to disinherit her. She avers that the instant application is an abuse of process, to the extent that the suit in Kakamega Cmc Mcl&e No. 1018 of 2018 seeks similar orders and is still subsisting. She asserts that the application is designed to frustrate her as a widow. She has attached to her affidavit an amended copy of the plaint in Kakamega Cmc Mcl&e No. 1018 of 2018, which joined her to the suit. There is also copy of her defence in Kakamega Cmc Mcl&e No. 1018 of 2018.

6. When the parties appeared before me, on 8th November 2021, they opted to leave the matter to me to determine on the basis of the filings on record.

7. The application before me is premised on sections 45, 83, 94 and 95 of the Law of Succession Act, Cap 160, Laws of Kenya.

8. The principal prayer in the application, dated 10th May 2021, is with respect to rendering of accounts, in terms of a full and accurate inventory of the assets and liabilities of the estate, and of dealings with the estate. Keeping of accounts is an important component of administration of an estate of a dead person. That is so because administrators occupy a fiduciary position with respect to the estate and in their relationship with the beneficiaries of the estate. The administrator, in equity and trust, holds property that does not belong to them, but which they hold for the benefit of others. Estate assets vest in administrators by virtue of section 79 of the Law of Succession Act. In that behalf, they are the only persons who may hold the property of a dead person and deal with it as if it belonged to them. They have a legal title to it as administrators, but they are not the owners of the property. It only vests in them for the purpose of administration. The ultimate destination of the property is the beneficiaries. That would mean that their title is transient. The property is held by them temporarily pending distribution to the persons who shall, at confirmation, be found to be beneficially entitled to the same.

9. Since the property does not belong to them, and they hold it for the benefit of others, be they survivors, heirs, dependants, creditors and others, they have a duty to account for their handling of the assets to the persons on whose behalf they hold it. The administrators have a duty to account, and the beneficiaries have a corresponding right to that account. That duty is also owed to the court, and especially in intestacy, since the administrator holds the grant of letters of administration, not out of their own right, or upon appointment by the dead owner, as in testate succession, but on account of appointment by the court. The administrators ought, therefore, to account to the appointing authority, with respect to what they have done with the estate upon being so appointed.

10. I note that the account in this case is sought by a co-administrator and a beneficiary. Both are within their rights to do so. An administrator may call for an account from a co-administrator, in much the same way that the beneficiary, who is a non-administrator, can. The account sought is two pronged, a full and accurate inventory of the assets of the estate, and of the dealings of the administrator with the estate from the date of appointment. As framed, the prayer in the application is no doubt anchored on section 83(e) and (h) of the Law of Succession Act, which casts a duty on administrators to render such accounts at least within six months of their appointment. That is designed to coincide with the filing of a summons for confirmation of grant, so that, before proposing distribution, the administrator is expected to place before the court a full and accurate inventory of the assets and liabilities of the estate. What should be available for distribution should be the net intestate estate, by dint of section 3, being what remains of the estate, by way of assets, after payment of expenses, debts, liabilities and taxes. There is an obligation to disclose the assets and the liabilities, in order to show to the court what is available for distribution.

11. Other than placing such inventory of the assets, the administrator is duty-bound to render an account of how they have handled the estate from the date of their appointment, up to the date of account. This gives an opportunity to administrators to explain to the court any expenditures met or borne by the estate, and any disposal of any of the assets of the estate. Of course, it should be pointed out that, by dint of section 82(a) (ii) of the Law of Succession Act, immovable assets cannot be sold before the grant has been confirmed, and if there are any sales, then the same can only be with respect to movables. Such account should explain why the said assets had to be sold, if any has been sold, how much money was raised, and what it was utilized for, all of which should be supported by proper documentation.

12. The duty to account accrues to all the administrators without exception. It can be done within the timelines set out in section 83 of the Law of Succession Act or at any time that the court orders, whether on its own motion or on application. None of the administrators in this cause have rendered accounts, at any time, whether by tendering an inventory of assets and liabilities, or by rendering an account of the dealings with the estate since appointment. Where there is more than one administrator, it should be made clear that none of them has more power than the other, or has a heavier duty than the other, or has more rights than the other. All are equal before the law, and have an equal duty to account and an equal duty to take such steps as are expedient for the purpose of the administration of the estate. The view taken by the applicants, that there is a greater burden of duty, on the widow to account, is erroneous. Similarly, the view by the respondent, that as a widow that she probably has a bigger say in administration over her children, is equally erroneous. She only enjoys a prior right or entitlement to appointment as administrator, not a prior right as administratrix over the children. Once appointed, together or jointly with the children, she does not enjoy more power than the children administrators over the estate. All of them have equal power and duty in the administration of the estate, and all of them are expected to do duty. The duties that are set out in section 83. To provide for a reasonable funeral for the deceased, to get in the estate, to settle debts and liabilities, et cetera. The duty to get in the estate does not fall exclusively on the widow administratrix, the children administrators equally have a duty to get in or collect the estate, and they are obliged to account to the court for what they have done towards that and from the date of their appointment.

13. The second aspect of the application is the invitation to declare that the respondent has intermeddled with the estate, on account of her having allegedly disposed of an asset of the estate prior to confirmation of the grant. Intermeddling is a concept under section 45 of the Law of Succession Act. It is about a person, who has no authority, handling the property of a dead person. It criminalizes such handling, and states that authority to handle such property comes from a grant or representation or from some express statutory provision. Section 45 specifies intermeddling as including taking possession of disposing of such property, among others. Taking possession would refer to moving into or taking charge of an asset that was not previously in the hands of the person before the deceased died. Disposing of includes selling estate assets without a grant or without express statutory authority.

14. In this case, the deceased died on 24th January 2011. The applicant is alleged to have had entered into a sale agreement on 24th October 2013, disposing of Butsotso/Indangalasia/236 to a third party. Nothing has been placed before me in this application as evidence that Butsotso/Indangalasia/236 belonged to the estate as at the date of the alleged sale. I have, however, seen a copy of a title deed, dated 19th January 2012, showing the registered proprietor to be one Barnard Barasa. There is consensus, though, that Butsotso/Indangalasia/236 was an estate asset. Administrators of the estate of the deceased were appointed on 31st October 2016, this cause having been initiated in 2015.

15. When the transaction of 24th October 2013 was being entered into, the respondent was not an administratrix, and Butsotso/Indangalasia/236 did not vest in her, by virtue of section 79 of the Law of Succession Act. As she was not an administratrix then, she had none of the powers set out under section 82, to deal with the estate, including the power to sell it. As she dealt with or handled the asset of a dead person without a grant of representation, she committed intermeddling, within the definition of that term under section 45 of the Law of Succession Act. The making of the grant to her in 2016 did not cure the unlawfulness of her conduct in 2013, for, by dint of section 80(2) of the Law of Succession Act, a grant of letters of administration intestate, has no retrospective effect, and takes effect only from the date of the grant. The grant of 2016, could not, therefore, operate to authenticate the illegality of 2013. The respondent appears to assert that she was a widow of the deceased and had been settled on Butsotso/Indangalasia/236 as her matrimonial home. That is not in contest, so far as I can see from the record. However, the fact of the relationship between the deceased and the intermeddler does not matter, for as long as there is evidence that the property in question belonged to the deceased. A widow or child of a dead person has not right to handle the assets of the dead person, unless he or she holds a grant, or some written law allowed him or her to do so. The respondent had no grant, and has not made an effort to demonstrate that there was some written law, then in force, which authorized her to handle Butsotso/Indangalasia/236 in the manner that she did in 2013.

16. Having found that there were clear elements of intermeddling by the respondent with respect to Butsotso/Indangalasia/236, should I censure her, as sought by the applicants? I am not persuaded to. Firstly, the applicants herein consented to the grant being made jointly to them and the respondent on 31st October 2016. I deem it that they acquiesced to that appointment then, despite her activities of 2013, and they cannot now turn around to assert that she was not qualified or competent for appointment as administratrix on that account. She is, however, still bound to account, for that transaction, to the court, and the other administrators, by dint of section 45(2) (b) of the Law of Succession Act, and to the beneficiaries, in terms of explanations regarding why she had to sell the property, it was sold for how much, and what she spent the proceeds of sale on. With that information, the court would then be in a position to determine what should be done in the circumstances. Secondly, there is a suit pending, Kakamega Cmc Mcl&e No. 1018 of 2018, on the validity of the sale transaction of 2013. Venturing to make any orders on the said transaction, in these proceedings, could undermine that suit, and embarrass the court seized of it.

17. My final word is that the parties in this cause are expending too much time on interlocutory applications that do not add value to the administration of the estate herein. The primary reason for appointment of administrators is management of the estate with a view to distributing the assets amongst the beneficiaries. That is the ultimate goal. That should be the focus of any litigation in the cause. The issues raised in this application could be quite properly dealt with at confirmation of grant, for at that point the administrators get a chance to account for their handling of the estate, and the court an opportunity to assess whether or not to confirm them into office. Piecemeal applications, for accounts and removal of administrators before the grant is confirmed, have the effect of delaying distribution. These are issues that can quite comfortably be handled together at confirmation.

18. I believe I have said enough, for me to make final orders. The orders that I am disposed to make are:a.That I direct the all three administrators, within the next thirty days, of this order, to produce to court a full and accurate inventory of the assets and liabilities of the estate of the deceased and a full and accurate account of all dealings therewith up to the date of the account;b.That respondent shall, in her account, explain the circumstances under which Butsotso/Indangalasia/236 was sold, for what consideration, and what the proceeds of sale were applied to;c.That the said accounts shall take the form of sworn affidavits;d.That I shall make no declarations or other orders with respect to the intermeddling alleged, in view of the pending suit in Kakamega CMC MCL&E No. 1018 of 2018;e.That the matter shall thereafter be mentioned after thirty days for compliance, and for directions with respect to the filing of an application for confirmation of grant;f.That failure to comply with orders relating to rendering of accounts, is a ground, under section 76(d)(iii) of the Law of Succession Act, for revocation of a grant of representation; andg.That each party shall bear their own costs.

19. It is so ordered. .

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA ON THIS 13TH DAY OF MAY 2022. WM MUSYOKAJUDGEErick Zalo, Court AssistantMr. Amasakha, instructed by Amasakha & Co., Advocates for the applicants.Mr. Osango, instructed by Osango & Company, Advocates, for the respondent.