[2025] KEHC 3602 (KLR)

In re Estate of Caroline Anyango Muchura (Deceased) (Succession Cause 2930 of 2014) [2025] KEHC 3602 (KLR) (Family) (18 March 2025) (Ruling)

Neutral citation: [2025] KEHC 3602 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 2930 of 2014

PM Nyaundi, J

March 18, 2025

Ruling

1. The Application for determination is dated 30th May 2024 and is presented by George Dominic Otieno under Section 1A, 1B and 3A of the Civil Procedure Act seeking the following ordersa.That the Honourable Court be pleased to order that the fifty percent (50%) share of the proceeds amounting to Kshs. 5,000,000/- of the sale of LR Number 19952/188 be released and/ or paid to the Applicant herein George Dominic Otieno less expenses advanced of Kshs 825,624. 70b.THAT this Honorable Court be pleased to order that the Respondents’ Advocate S. M. Muhia And Company Advocates be made a signatory of the fifty (50%) proceeds of sale of L.R. Number 19952/188 currently being held at Account Number 00xxxxxx, SBM Bank in names of MMW And Company Advocates Llp And Atsieno Ngunya And Associates And Sm Kitonga And Company.c.That the Honourable Court be pleased to order that upon S. M. Muhia And Company Advocates being made a signatory to Account Number 00xxxxxxx, SBM Bank the Court order dated 29th September 2022 be deemed as duly complied with.d.That this Honourable Court be pleased to grant such further or other orders and directions as it may deem fi and just.e.That the costs of this Application be in the cause.

2. The Applicant asserts that he and the deceased own the property Land Reference Number 19952/188 as tenants in common in equal shares. Following consent order recorded in ELC Case Number 1429 Of 2014, Aden Abdullahi Mohamed Versus George Dominic Otieno & Caroline Anyango Muchura it was agreed that the property be sold to the plaintiff therein.

3. He further avers that subsequent to the consent above, consent was recorded herein in reference to application dated 13th May 2022. The Consent Order dated 26th day July 2022 provided as follows-a.That leave be and is hereby granted to the Applicant to dispose of property Land Reference Number 19952/188 situate in Langata registered in the names of George Dominic Otieno and Caroline Anyango Muchura as tenants in common in equal shares.b.That a special grant of representation in the joint names of George Dominic Otieno & Maxwell Okoth Muchura be and is hereby issued for purposes of disposing off by way of a sale the property land reference Number 19952/188 situate in Langata.c.That the fifty percent (50%) share of the property reverts to the estate of the deceased and the same be deposited in a joint interest earning account to be opened in the names of the advocate for the applicant and the Respondent.d.That the cost of this Application be in the cause.

4. The Applicant avers that following the sale of the cited asset, the proceeds were deposited in two separate accounts. The deceased’s share was deposited in account number 00xxxxxx at SBM Bank in the names of MMW and Company Advocates LLP and Atsieno Ngunya and Associates and SM Kitonga. While that of the Applicant was deposited in account number 00xxxxxx, SBM Bank in the names of Atsieno Ngunya & Associates & SM Kitonga & Company Advocates and Account number 01102492152001, The Co-operative Bank of Kenya Ltd, Nairobi in the names of Stephen and Linda. It is held that his share is unjustifiably held.

5. The property was sold for Kshs. Ten Million.

6. The Application is opposed and the Respondent has sworn a replying affidavit on 13th September 2024. It is averred that the deceased’s claim to the property is 60% as stated in her will. The undisputed entitlement of the Applicant is 40 per cent. That he is guilty of intermeddling as he has collected rental income from property land reference Number 19952/188 and the property in Madaraka.

7. In supplementary affidavit sworn on 9th October 2024, the Applicant avers that after the death of the deceased, the house had a tenant from September 2015 to January 2024. However, the tenant did not pay rent from April 2021 to January 2024.

8. He avers that the rent agreed upon was Kshs. 60000 per month and therefore the total rent collected from the Langata property is Kshs 4,020,000. He is prepared to surrender 50% of this amounting to Kshs. 2,010,000 to the estate.

9. Against this amount he claims a refund of the expenses he has incurred beinga.Land rates of Kshs 9571b.Land rate of Kshs. 21,624c.Rates clearance certificate Kshs 10000d.Water and electricity Bills Kshs 175000e.Water de- enrolment of Kshs 118,910f.Electric fence Kshs 125,700g.Works to complete the house and cost of sourcing tenant Kshs 360,477h.Demolition of property Kshs 639,605Total Claim= 1,460,887/-

10. He does not reveal the rental income collected from the Madaraka property but contends the property was to be jointly owned between himself and the deceased but the transaction was not finalised prior to her death. He also states he is entitled to a share of the pension benefits payable to the deceased which were paid to the applicants solely amounting to Kshs 3,816,885.

11. He concedes to a reduction of his 50% share by Kshs 825,624. 70 the amount advanced and the 50% of the rental income. He avers that his share is not subject to the succession proceedings. His submits that the amount payable to him is Kshs 3,625,262. 30.

12. The Application was canvassed via written submissions.

13. The Applicant’s submissions are dated 9th October 2024. He enumerates the following as the issues for determination.a.Whether the Applicant is entitled to 50% share of the proceeds of sale of L.R. No. 19952/188b.Whether the Applicant is entitled to the reliefs sought in its application.

14. He reiterates that he is entitled to a 50% share and refers to the decision in Isabel Chelanget v Samwel Tiro Rotich & 5 Others [2012] eKLR. On the 2nd issue he submits that he has discharged the evidential burden.

15. The Respondents Submissions are dated 14th November 2024. He frames the issues for determination asa.Whether the Applicant is entitled to 50 % of the proceeds of sale of the subject property?b.Who should bear costs of this suit?

16. It is the submission of the Applicant that the claim is premature as the question of the entitlement of the Applicant to a share of the estate of the deceased is the substratum of the summons for revocation which is yet to be determined. Reliance is placed on Section 6 of the Civil Procedure Act and the decision in Daniel Kipkemboi Bett & Anor v Joseph Rono [2022] eKLR and Republic v Paul Kihara Kariuki, Attorney General & 2 Others; Ex Parte Law Society of Kenya [2020] eKLR.

17. It is further submitted that the Applicant has approached the court with tainted hands as he is guilty of intermeddling with the estate; collecting rental income from the Langata and Madaraka properties and failing to account for the same. Reference is made to the decision in Mongare (Suing as Administrator and Personal Representative of the Estate of RichardMongare Ogambo) v Kerubo Succession Cause E016 OF 2023 [ 2024] KEHC 4980 (KLR) (14th May 2024) Ruling for the assertion that he is not entitled to the relief (s) sought.

18. On the 2nd issue, it is submitted that the Applicant should bear the costs of the suit as the application amounts to an abuse of court process. Reference is made to the decision in Jasbir Singh Rai & 3 Others v Tarlochan SinghRai & 4 Others SC Petition No. 4 of 2012; [2014] eKLR

Analysis And Determination 19. I have taken note of the pleadings and submissions filed, along with the authorities cited and the relevant authorities and frame the following as the issues for determination;a.Whether the Applicant should receive his share from the proceeds of sale of LR Number 19952/188b.Who should pay costs of the Suitc.What if any consequential orders the Court should make

20. On the issue of the share of the Applicant to the proceeds of sale; from the record it is clear that vide consent order of 26th July 2022, the Estate was to receive 50 per cent of the proceeds of sale. Both parties were represented by counsel when the consent was recorded. In any event there is no application to set aside or vary the orders of the Court made on 26th July 2022. The Court of Appeal in Intercountries Importers and Exporters Limited vs. Teleposta Pension Scheme Registered Trustees & 5 others [2019] eKLR, pronounced itself as follows: -“Essentially, the above cited authorities are clear that a consent Order will only be set aside if it can be demonstrated that it was procured through fraud, non-disclosure of material facts or mistake or for a reason which would enable a court set it aside…” (Emphasis provided)

21. None of the parties is expressly seeking the setting aside of the Order but appear to want to side step it. This option is not available to them. The consent has pronounced on the very issue that is the substance of the application before Court. In the circumstances I have no hesitation in finding that the Applicant is entitled to 50 per cent of the proceeds of sale.

22. The issue however is whether the money should be released to him. The respondent argues that the applicant owes the Estate as he has been intermeddling with properties referred to as the Langata and Madaraka houses. The Applicant does not deny this, he infact volunteers information of the rental income that he has collected with regard to the Langata property and proceeds to tabulate the same and reduces the amount owing to him by the rent received by him and apportioned to the estate and further lodges a claim against the estate for works he undertook to ‘preserve’ the estate.

23. The Applicant admits that he received an advance of Kshs 825,624. 70. He concedes that the same should be deducted from his dues and that he owes the estate a portion of the rent collected.

24. The probate Court is charged with protecting the estate for the benefit of the beneficiaries. I am inclined to agree with the respondent that in safeguarding the estate the money should be held until it is possible to determine how much the Applicant owes the estate on account of his intermeddling with the Madaraka property.

25. Going by the estimates provided by the Applicant on his dealings with the Langata property, I find that the entitlement of the Applicant is tabulated as hereunder 50% share of the proceeds of sale Kshs 5,000,000 Less 50% of Rental income for Langata Property Kshs 2,010,000 Less from purchaser of Langata Property Kshs 825,624. 70 Total available to the Applicant Kshs 2,164, 375. 30

26. The Applicant proposes that he be refunded outlays he made as set out in paragraph 9. It is not in dispute that he made these payments after the death of the deceased. These actions amount to intermeddling with the estate. This court can therefore not sanitise his actions by refunding him that money. He has not established why the estate should meet these costs when the same were done absent the authorisation or knowledge of the Administrators.

27. The Applicant concedes that he continues to collect rent from the Madaraka property. In my view this is an appropriate case for the Court to exercise its mandate under Section 47 of the Law of Succession Act to require that this amount be withheld until the conclusion of the succession cause.

28. Accordingly, the application succeeds partially to the extent that I find that the Applicant is entitled to the 50 per cent share of the proceeds less the deductions as set out in paragraph 25 above, amounting to Kshs 2,164, 375. 30. The said sum to be withheld until determination of the Summons for Revocation so as safeguard the interests of the beneficiaries.

29. Parties to continue and finalise the hearing of the Summons for Revocation.

30. Each party will bear their own costs.

It is so ordered

DATED, SIGNED AND DELIVERED ON THE VIRTUAL PLATFORM, AT NAIROBI THIS 18th DAY OF MARCH, 2025. PATRICIA NYAUNDIJUDGEIn the presence of:Kanja Court Assistant