[2022] KEHC 1692 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

SUCCESSION CAUSE NO. 217 OF 2003

IN THE MATTER OF THE ESTATE OF DAVID WILLIAM KIGUMI KIMEMIA (DECEASED)

BENSON MWENDA KIMEMIA..................1ST APPLICANT/OBJECTOR

SILVIA WAMBOI..........................................2ND APPLICANT/OBJECTOR

VERSUS

SALOME WANJIRU KIGUMI..............1ST RESPONDENT/PETITIONER

JORAM KIMEMIA................................2ND RESPONDENT/PETITIONER

RULING

1. By the summons application dated 1st October 2021 and filed herein on 10th October 2021, the applicants seek to secure the following orders: -

a. Spent

b. That the Honourable Court does issue directions that the grant of letters of administration in respect to the Estate of the late DAVID WILLIAM KIGUMI KIMEMIA do issue to BENSON MWENDA KIMEMIA and SILVICA WAMBOI

c. That, alternatively, the court be pleased to issue Grant of Letters of Administration to any other beneficiary as it deems fit other than SALOME WANJIRU KIGUMI and JORAM KIMEMIA

2. The application is premised on the grounds set out therein and is supported by affidavit of Gibson Maina Kamau sworn on 25th February 2016.

3. The applicant’s case is that the grant of letters of administration issued to the Estate of the late DAVID WILLIAM KIGUMI KIMEMIA on the 23rd day of June 2004 and confirmed on 22nd May 2006 and rectified on 18th December 2006 then further rectified on 14th May 2007 in favour of the respondents was revoked vide the judgment of this court on 27th May 2021. The now wish to apply to be appointed administrators of the estate.

4. In the ruling of 27th March 2021 the court revoked the grant of letters of administration but failed to give directions with regard to the administration of the estate. Ms Edith Muthoni and Jacinta Wanjiru, who are beneficiaries of the estate swore an affidavit supporting the appointment of the applicants.

5. The 2nd respondent opposed the application vide a replying affidavit dated and filed on 15th October 2021. The 2nd respondent’s case is that the application and affidavits are frivolous and vexatious, an abuse of the court process and should be dismissed. The petition for letters of administration were filed on 8th October 2003 and the letters of administration were issued to the respondents on 23rd June 2003. The beneficiaries consented to the making of the grant and the applicants have not exhibited any single illegality warranting his removal as an administrator.

6. The 2nd respondent contends that the 1st applicant is unsuitable as an administrator as he is always outside the country. The main issue is distribution of the estate and any parties displeased can file affidavits with their proposed mode of distribution. Sylvia Wamboi, Edith Muthoni, Jacinta Wanjiru and Benson Kimemia swore a joint affidavit dated 4th August 2005 in which they agreed that the respondents be granted letters of administration. They signed a consent on mode of distribution dated 24th November 2005. The process of confirmation of grant was concluded by rectification on 14th may 2007 and the estate of the deceased having been distributed to all the beneficiaries, most of them have developed, improved, utilized and some have disposed of their entitlement. There is no dispute as to administration.

7. Upon perusal of the application and submissions of the parties herein, the only issue for determination is whether the applicants should be appointed administrators of the estate.

8. The gist of the application is that the court had revoked the letters of administration by its ruling dated 27th March 2021. A perusal of the ruling reveals that indeed the grant of letters of administration issued on 23rd June 2004, confirmed on 22nd may 2006 and rectified on 14th May 2007 were revoked by the court. Further, the applicants are beneficiaries of the estate and eligible to be administrators. Edith Muthoni and Jacinta Wanjiru are beneficiaries of the estate and of equal priority who have consented to the applicants’ appointment as per the joint supporting affidavit filed and dated 1st October 2021.

9. Section 66 of the Law of Succession Act provides;

When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference—

(a) surviving spouse or spouses, with or without association of other beneficiaries;

(b) other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;

(c) the Public Trustee; and

(d) creditors: Provided that, where there is partial intestacy, letters of administration in respect of the intestate estate shall be granted to any executor or executors who prove the will.

10. In the premises, this Court is satisfied that the application has merit and should be and is hereby allowed so that the estate may be properly managed.

11. There shall be no order as to costs.

DATED, SIGNED AND DELIVERED AT ELDORET ON THIS 10TH DAY OF MARCH, 2022.

E.K. OGOLA

JUDGE