[2010] KEHC 344 (KLR)
The court found that while the respondent did expend personal resources to maintain the estate's tea bushes prior to receiving the limited grant, he failed to adequately account for substantial withdrawals from the estate account after being granted administrative authority. The court held that beneficiaries are...
Source-derived case information.
- Citation
- [2010] KEHC 344 (KLR)
- Parties
- Applicant: Peterson Muriithi Mithamo; Respondent: Eliud Ndugutu
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 338 of 2007
- Procedural Posture
- Succession Cause / Ruling on Application for Review, Account, and Limited Grant
- Outcome
- Application partly allowed and partly denied.
- Judges
- J Karanja
- Legal Topics
- Estate Administration, Accounting by Administrator, Removal of Administrator, Limited Grant of Letters, Beneficiary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Peterson Muriithi Mithamo
Applicant
Eliud Ndugutu
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Review, Account, and Limited Grant
Legal Issues
- 1 Whether the respondent should be ordered to account for withdrawals from the deceased's estate account.
- 2 Whether the respondent should be removed as administrator and replaced by the applicant.
- 3 Whether a limited grant of letters of administration should be issued to the applicant.
Ratio Decidendi
The court found that while the respondent did expend personal resources to maintain the estate's tea bushes prior to receiving the limited grant, he failed to adequately account for substantial withdrawals from the estate account after being granted administrative authority. The court held that beneficiaries are entitled to transparency and an account of estate funds. However, the evidence did not establish sufficient grounds for removal of the respondent as administrator, as both parties had made withdrawals and the applicant also left little in the account. The court therefore denied the prayer for removal but ordered the respondent to render a detailed account of all withdrawals,...
Court Disposition
Application partly allowed and partly denied.
Orders
- Prayer for removal of respondent as administrator is denied.
- Respondent is ordered to file an account of all withdrawals from the deceased's account, particularly the withdrawal of KShs.225,000 on 8.11.07 and any other withdrawals in excess of KShs.10,000, within 60 days from the date of the ruling.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
SUCCESSION CAUSE NO. 338 OF 2007
(IN THE MATTER OF THE ESTATE OF MILKA WANGITHIMWARARI - DECEASED)
PETERSON MURIITHI MITHAMO…………….............................................................................................……..APPLICANT
VERSUS
ELIUD NDUGUTU…………………….……………........................................................................................…….PETITIONER
R U L I N G
Peterson Muriithi Mithamo has moved this court through Magee was Magee Advocate under order XLIV Rule 1 of the Civil Procedure Rules; and Rules 63 and 73 of the Probate and Administration Rules for the following orders:-
1. That the Honourable court be pleased to review and/or set aside the orders issued on 12. 11. 07.
2. that the Honourable court be pleased to order the respondent to give a statement of Account of the operations of A/C number 1301-25-1292 with Kirinyaga District Farmers Sacco as from 12. 10. 01 to date.
3. That the Honourable court be further pleased to issue a limited Grant of letters of administration in respect of the No. 1301-25-1292 with Kirinyaga District Farmers Sacco.
He has listed 3 grounds on the face of the application. He has also supported the same with his Affidavit dated 28. 04. 08. The gravaman of his Application is that the Respondent who was issued with a limited grant by this court has been squandering the money collected from the tea bushes left by the deceased which money goes into the account in question. He therefore wants the Respondent to be asked to account for the withdrawals. He also wants to be appointed as the administrator of the deceased’s estate in place of the Respondent.
According to the Respondent who appears to have the support of the other siblings, he is the eldest son of the deceased and therefore entitled to take care of the estate. He has also deponed that after the death of the deceased he used to take care of the tea bushes using money from his pockets for 4 years until 2007 when he was given the limited Grant. He availed to the court the statements of accounts for the tea account in question. He explained that he employed a worker to tend the tea and paid for other expenses to ensure that the tea was growing and was picked and taken to the factory.
I have looked at the statement of the account. I agree that by the time the deceased died i.e. March 2003 there was a paltry sum of KShs.508. 43 in the account. The same statement shows that the tea was being taken to the factory and the account was making money without any withdrawals. From 1. 4.03 to November 2007 when the limited Grant was issued to the Applicant, the account had grown to KShs.423,305. The Respondent on getting the limited grant immediately withdrew over 200,000. He has not explained what he did with the money or whether the same was a reimbursement of what he had used earlier on. The statement thereafter shows consistent withdrawals, some for several times in a month with some single withdrawals of over 40,000 Sh. As at December 2008 only a paltry Sh.4,939. 90 remained in the account.
It is appreciated that the respondent did spend his own resources to ensure that the tea bushes were taken care of for 4 years. In my view however, he has not given an account of what he was doing with these withdrawals some of which cannot be said to be small. The other beneficiaries are entitled to know what the Respondent as the administrator of the said estate is doing with that money. In my view, there are no sufficient grounds to remove him as the administrator of the estate and replace him with the applicant. The Applicant also withdrew the money when he had the passbook and left close to nothing in the account.
Prayer 1 of his application is therefore denied. I nonetheless find that the Respondent should file an account of how the money withdrawn from the deceased’s account has been used – particularly the withdrawal made on 8. 11. 07 for KShs.225,000 and any other withdrawals that are in excess of 10,000 Sh. at a go. It is only after such an explanation is given that the court can determine whether indeed the Respondent has been diligent and prudent in the administration of the said Estate.
He will render the said accounts within 60 days from the date hereof.
W. KARANJA
JUDGE
Delivered, signed and dated at Embu this 9th day of December 2010
In presence of:- Both Counsel and parties.