[2022] KEHC 338 (KLR)

In re Estate of David Ndua Thuo (Deceased) (Succession Cause E093 of 2021) [2022] KEHC 338 (KLR) (5 May 2022) (Ruling)

Neutral citation: [2022] KEHC 338 (KLR)

Republic of Kenya

In the High Court at Kiambu

Succession Cause E093 of 2021

MM Kasango, J

May 5, 2022

Ruling

1. Before me is the summons dated 2nd March, 2022 filed by Godfrey Alfred Hinga Ndua (hereafter Godfrey). The Godfrey Alfred Hinga Ndua respondents to that application are in total nine but the main respondent to whom the prayers in that application are directed is Virginia Waithira Ndua (hereinafter Virginia).

2. The center of the dispute between Godfrey and VIRGINIA is the inheritance of the estate of the deceased herein. The deceased was married to Virginia as at his time of death. Virginia was his second wife. Godfrey was son of the first wife, Alice Njeri Thuo deceased. There is no doubt the deceased’s estate is vast.

3. Godfrey by the present application, seeks various orders as follows:-a.Injunction to restrain the respondents from leasing constructing/developing properties of the estate.b.Injunction against Heri Homes Ltd and Finsco Africa Ltd from constructing, developing or dealing with specific properties of the estate.c.An order for the rental income of deceased’s estate be deposited in Estate Account to be opened in the joint names of the advocates representing the applicant and the respondents.d.An order for the respondent to provide audited statements of accounts.e.An order appointing an interim administrator of the Estate.f.An order compelling the respondent to submit to the court Joint Venture Agreement between Heri Homes Ltd and Finsco Africa Ltd.g.Any further orders that the court may deem fit and just to grant in the circumstances.

4. That application and prayers are based on the grounds that:-a.The deceased had 5 children with his first wife, including Godfrey.b.The 1st respondent Wamikey Estate Limited is a company the company owned by the deceased and Virginia.c.Virginia has illegally taken over the running and management of the company to exclusion of the other members of the family.d.Virginia has not obtained a grant.e.The respondents have entered into an illegal Joint Venture Agreement with developers known as Heri Homes and Finsco Africa who are developing property which belongs to the estate and are currently selling.f.That properties of the estate generate estimated amount of Kshs.5,000,000 per month.g.Virginia has failed to disclose the family of the 1st house.h.Godfrey was not involved in the reading of the alleged Will of the deceased and therefore doubts its authenticity.i.Godfrey is apprehensive that unless the court intervenes the beneficiaries of the estate who rely on the income from the estate will continue to suffer irreparable harm.

5. The application is opposed by the respondents through grounds of opposition dated 21st April, 2022. By those grounds, the respondents aver that the application is misconceived and bad in law; that the deceased was free to dispose his free property through a Will; that Godfrey’s allegation of being a beneficiary is res judicata because the Kiambu Chief Magistrate in Misc. No. E080 of 2021 on 25th June, 2021 ordered the alleged beneficiaries including Godfrey do undergo DNA to confirm they are children of deceased; and that this Court lacks jurisdiction to adjudicate in respect to the company since it is a limited liability company.

Analysis 6. I have considered affidavit evidence grounds of opposition and the learned counsel’s submissions.

7. As stated before, this is a very vast estate. Godfrey estimated the monthly income of this estate is Kshs.5 million. He was not contradicted and this Court indeed accept that estimation of the income to be correct.

8. Godfrey petitioned before Milimani Family Division in Succession Cause No. E2363 OF 2021. Although Godfrey alleges that Virginia did not disclose this cause before this Court to him, it also seems that he and his co-petitioners did not disclose to Virginia of the filing of the succession cause before the Milimiani Family Division. This is discernable by the fact that Virginia’s consent was not obtaining before filing that succession in Milimani Family Division and if indeed Virginia refused to give her consent she ought to have been cited which she was not.

9. Equally, Virginia, it would seem when she filed for limited grant to be issued to her, she did not inform Godfrey.

10. Whether Godfrey failed to inform Virginia of his petitioning vis-à-vis failure of Virginia to inform him is not grave enough to be determinant of the matter before court.

11. The orders sought by Godfrey would largely touch on impeding the normal running of the estate of the deceased. The continued running of the estate would ensure that the beneficiaries would not suffer loss. I state so because Virginia through her affidavit in support of her application for Limited Grant to be issued to her dated 31st August, 2021, stated thus:-THAT there are over one hundred (100) workers in the coffee plantation of the estate who have carried on working since the testate’s death and who have to be paid their weekly and monthly wages/salaries.THAT the said coffee farm attracts huge water and electricity bills due to the day to day running of the affairs.THAT testate had an active real estate business which have to be managed in terms of collective cleaning/payment of annual rent and rates with County of Kiambu and Nairobi.”

12. The above, considering the number of properties listed as comprising the estate of the deceased is not a small undertaking. To restrict the use of funds needed to ensure the continuous running of the estate may deal a death blow to the estate. It is for that reason I do not favour the prayer that the income of the estate be held in joint accounts of the learned advocates as an Estate Account. My finding brings to remembrance what Justice Ringera (as he then was) held which the Court of Appeal referred to in the case Prideinn Hotels & Investments Limited Vs. Tropicana Hotels Limited (2018) eKLR thus:-I say so because winding up should in my view be the last resort. For me it means passing a death sentence on a company and killing all hope of its resuscitation. I echo the words of Ringera J. (as he then was) in Jambo Biscuits (K) Ltd. V Barclays Bank of Kenya Ltd, Andrew Douglas Gregory and Abdul Zahir Sheikh(2003) 2EA 434 when he stated that:-“…The receivership would most probably result in the complete destruction of the business and goodwill of the company…And I think it is a notorious fact of which judicial notice may be taken that receiverships in this country have tended to give kiss of death to many a business’’.

13. Although Justice Ringera’s decision referred to receivership application what was stated in that case is indeed applicable to what may result to this estate if workers’ salaries and utilities payments were to be disrupted by having money not readily available to one running the company and the estate generally.

14. It is obvious that there is need for this Court in due course to determine whether the deceased died leaving a valid written Will. Godfrey stated that he doubted its authenticity. There is need for that Will to be proved through via voce evidence.

15. Bearing the above discussion in mind and considering the justice of this case, I find that there is need to appoint an interim administrator by issuing a grant ad collegenda bona. Under Section 67 of the Law of Succession Act Cap 160, the court is empowered to issue such a grant. That Section provides:-(1)No grant of representation, other than a limited grant for collection and preservation of assets, shall be made until there has been published notice of the application for such grant, inviting objections thereto to be made known to the court within a specified period of not less than thirty days from the date of publication, and the period so specified has expired. 2. A notice under subsection (1) shall be exhibited conspicuously in the court-house, and also published in such other manner as the court directs.

16. The provisions of that Section were considered in the case In re Estate of Elijah Dolfus Nyaseme (Deceased)(2013) eKLR as follows:-The grant ad colligenda bona in particular is made pending the making of a full grant. It is limited in the sense it only allows the interim administrators to collect and preserve the estate. It was held in Morjaria Vs. Abdulla (1984) KLR 490, that it would be made where the assets are in a precarious state. It is needed where urgent action needs to be taken to preserve the estate. In this case it would appear that it was obtained primarily for the purpose of meeting the obligations of the deceased’s business ran through his firm, Joel E.D. Nyaseme & Associates.”

17. Before however concluding this Ruling, it is important to state that Godfrey’s prayer for injunction to be issued against entities who are not parties in this action that is Heri Homes Ltd and Finsco Africa Ltd cannot succeed. That would be tantamount to denying them the right to be heard and therefore cannot succeed. Those prayers accordingly are not available.

18. This Court issues the following orders:-1. Virginia Waithira Ndua is hereby granted a grant ad colligenda bona Limited to:-a.Collecting preserving the Estate income and expenses with respect to rental income and expenses in Ruiru Township/39, Ngara Properties under L.R. NOS. 209/2759/6, 209/7670 and 209/2489/4;b.To pay salaries, wages and collect income in L.R 92/6 under Wamikey Estate Limited;c.To operate the deceased’s bank accounts of the deceased under both Wamikey Estate Limited and Thuo Commercial Limited; andd.Managing deceased’s motor vehicles registration NOs. KYK 536 and KAP 115R.2. The court shall receive oral evidence on a date to be fixed on proof the validity of the Will.3. The summons dated 2nd March, 2022 is dismissed with costs in the cause.

19. Orders accordingly.

RULING DATED and DELIVERED AT KIAMBU THIS 5TH DAY OF MAY, 2022. MARY KASANGOJUDGECoram:Court Assistant: MouriceFor: VIRGINAIA WAITHIRA NDUO : Mr. GithuiAND OTHER RESPONDENTS : Mr. GithuiFor: GODFREY ALFRED HINGA NDUA : Miss Wangechi AkendiCOURTRuling delivered virtually.MARY KASANGOJUDGE4| High Court Succession Cause No. E093 of 2021