[2022] KEHC 10119 (KLR)

In re Estate of Dominic Mukui Kimatta (Deceased) (Succession Cause E12 of 2021) [2022] KEHC 10119 (KLR) (4 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10119 (KLR)

Republic of Kenya

In the High Court at Nakuru

Succession Cause E12 of 2021

TM Matheka, J

July 4, 2022

Between

Narwal Signh Bhogal

Citor

and

Hildah W.Kimatta

Citee

Ruling

1. On October 25, 2020 Mr. Dominic Mukui Kimatta an advocate of this court died.

2. The Law Society of Kenya (LSK) in consensus with his family appointed Joshua Musembi Ndolo and Jane Gatu Magana Advocates to take charge of his firm Kimatta & Co. Advocates.

3. They applied for, and on June 23, 2021 were issued with a Limited Grant (Letters of Administration Ad Colligenda Bona) for the purposes only of collecting and getting and receiving the estate, with respect to the firm,

4. Narwar Singh Bhogal filed this Citation on February 11, 2021. It is addressed to Mrs. Hildah W. Kimatta, P.O. Box 3300 – 20100, Nakuru. It says;“Where as it appears by the affidavit of Narwar Singh Bhogal of P.O. Box 294 – 20100 Nakuru sworn on the …. January 2021 that the above named Dominic Mukui Kimatta of P.O. Box 3300 – 20100 Nakuru died on the October 25, 2010intestate leaving you the said Hildah W. Kimatta, the widow and among the persons entitled to his estate.Nowthis is to direct the said Hildah W. Kimatta do within fifteen (15) days after service hereof on you (inclusive of such service) cause an appearance to be entered for you either in the principle registry or in the Nakururegistry and accept or refuse letters of administration of all the estate which by way devolves to and vests in personal representative of the deceased or show cause why the same has not been done.And Take Noticethat in default of your so appearing and accepting and extracting letters of administration this court may proceed to grant letters of administration of the said estate to the citee your absence notwithstanding.”

5. On March 15, 2021 the firm of Gatu Magana & Co. Advocates filed Memorandum of Appearance (under protest, as the office served). It states;“Please Enter AppearancE (Under Protest) for Hilda W. Kimattanamed as the Citee herein, and whose address for service for purposes of this suit shall be C/o Gatu Magana & Co. Advocates, Gibcon House, 1St Floor, Room 101, Kijabe Row, P.O. Box 2950 – 20100, Nakuru.”

6. The basis for the Citation to accept/refuse letters of administration is set out in the affidavit of support of Narwar Singh Bhogal sworn on January 8, 2021. That the late Mr. Kimatta was his advocate and the firm acted for him and his co-plaintiffs in Nakuru High Court Civil Case Number 38 of 2003 against National Bank of Kenya and 3 others.

7. That in that matter whose subject matter was a parcel of land LR 455 of 2021, they were successful, but ordered to pay the bank Kshs. 28,933,698. 00. That the money was on October 23, 2019 transferred from the citor’s account at Bank of Baroda to the account of Kimatta & Co. Advocates in Eco Bank for onward transmission to National Bank Limited.

8. That when the money was not remitted to that bank the citor wrote to Mr. Kimatta on March 23, 2020 and May 8, 2020 to return the money. Mr. Kimatta passed on on October 25, 2020, before he had returned the money. That he left a widow the citee, who ranks in priority in taking out letters of administration. By the time of filing the citation, she had not taken out the letters of administration. He was apprehensive that he required the intervention of the court to get the cooperation of the citee so as to recover that colossal sum held by the firm and since the citee held all the documents for filing of the petition for grant of letters of administration, her failure to do so was holding the citor and his co-plaintiffs in High Court Civil Case Number 38 of 2003 hostage. He wanted the court to summon the citee to show cause why she had not taken out the letters of administration.

9. The citation was responded to by Joshua Musembi Ndolo advocate, vide Replying Affidavit sworn on December 17, 2021. In his affidavit he deponed that the citation was served on the firm of Gatu Magana & Co. Advocates, and the same was received under protest. He annexed a copy of the Citation which bore the stamp of Gatu Magana & Co. Advocates, the protest by the advocate, that they entered appearance because the citation relates to the firm of Kimatta & Co. Advocates who are in a client/advocate relationship with the citor.

10. That the Limited Grant their two advocates had obtained expressly mandated them as administrators to manage and wind up the law firm of Kimatta & Co. Advocates;“‘…. and my foresaid co-administrator to manage and wind-up the law firm of Kimatta & Co. Advocates, and towards that end… and to ultimately account to the court and the family of the deceased for any eventual profits –and any such profits shall at that time ‘fall to the deceased’s estate’.”

11. That the citor also owed the estate the sum of Kshs. 100,000,000/= in unpaid fees, as per the Bills of Costs evidenced in Nakuru High Court Miscellaneous 150, 151, and 152 of 2021.

12. That the citor was among other clients of the deceased’s advocate’s firm and his application was premature and if he was owed any money by the firm, the same would be refunded. That if he had any issues with the Limited Grant made to them he ought to have challenged that in Nakuru Succession Cause Number E055 of 2021.

13. Thereafter parties filed their submissions, the applicant/citor through the firm of Sheth and Wathigo Advocates filed Submissions dated December 2, 2021, and those dated February 28, 2022. The respondent/citee through the firm of Gatu Magana & Co. Advocates.

14. The citee/respondent’s position is that the court is functus officio and that the citation is bad in law, premature, and abuse of the court process, and the citor has no locus standi that his alleged debt had not been ascertained so he could not be a creditor. It is argued against the citation that the citation was never served on the citee personally as required by Rule 21 (3) of the Probate and Administration Rules. That the citor made no effort to prove the existence of the alleged citee. That the court having made the limited grant in Succession Cause Number E055 of 2021, became functus officio and cannot issue another grant. The respondent cited Section 79 of the Law of Succession Act. That the citor’s claim fell within the ambit of the mandate of the interim administrators. That in any event that the estate of the deceased being a law firm required a qualified and practicing advocate to administer it, and counsel relied on in Re Estate of Joe Wandago Okwach (Deceased) [2018] eKLR where the court said;“It is clear from the Law Society’s Rules and the prescription for appointment of an Advocate inter vivos that any deceased advocate’s practice must be managed and wound up in a manner that is equitable to his or her clients and any potential beneficiaries. By law, the only person who can run a law firm is an Advocate with the requisite qualifications and current practicing certificate. In this case, it appears that none of the persons who would be entitled to petition for full grant fall within that category. In the circumstances, the Court must appoint an advocate.”and the case of the administrators of the Estate of Maurice Ombogo (Deceased) v Standard Chartered bank Kenya Limited & Another [2000] eKLR.

15. The citor relies on Re Estate of Elijah Dolfus Nyaseme (deceased) [2013] eKLR to argue that the deceased law firm being a sole proprietorship does not enjoy perpetual success.“Regarding the affairs of Joel E.D. Nyaseme & Associates, it would appear to me that the said business was a sole proprietorship. Such an arrangement does not enjoy perpetual succession. It dies with the proprietor….. The proceeds in the bank accounts in the name of Joel E.D. Nyaseme & Associates were the property of the deceased and form part of the estate. Administrators holding a grant limited ad colligenda bona cannot possibly access such accounts as their mandate is limited and they can only deal with them after the grant has been confirmed.”

16. That the limited grant issued to the advocates herein was solely for the purpose of winding up the law firm as elucidated in The Administrators of the Estate of Maxwell Maurice Ombogo (deceased), re-affirmed in Virginia Wangui Mathenge v Agnes Wairimu Njoroge & Another [2013] eKLR.

17. On the issue of locus standi the citor argues that he falls under Section 66(d) of the Law of Succession Act, as a creditor in that the estate owes him close to Kshs. 29 million. That as per Musyoka J in Re Estate of Mukhobi Namonya (Deceased)[2020] eKLR the citor was a creditor to the estate because he was an individual who had transacted with the deceased during his lifetime and that; “Debts that the deceased left unsettled are a burden that the administrators of his estate ought to take care of transactions that he left incomplete…. Should be completed by the administrators.”

18. The citor relies on Section 79, 82 and 83 of the Law of Succession Act. Alphonce Katana Kalama vs Steve Kithi Gombo & 3 others [2016] eKLR where the party owed money by the estate was declared a creditor. That the issue of the Kshs. 28,933,698/= was out of a judgment of this court and there was therefore no need to prove the debt.

19. On whether the court is functus officio, the citor relies on page 155 of Musyoka’s book Law of Succession where he states;““A limited grant is a grant that does not give the personal representative authority (or confirm the authority, in the case of a grant of probate) to act with respect to the whole estate in all respects until the administration is completed. It may be described as a restricted grant. Section 54 allows the court to limit a grant of representation that it had jurisdiction to make. A grant may be limited as to special purpose, or property, or time, or it may be one of the various special types. The various classes or limited grants are set out in the 5th Schedule of the Law of Succession Act.”

20. On whether the respondent is the rightful citee the citor argues that in Succession Cause Number E055 of 2021, the application for the grant ad colligenda bona defuncti, the respondent filed an Affidavit in which it was annexed a Marriage Certificate, and where the citee was described as the sole widow of Dominic Mukui Kimatta. That the Affidavit was filed by the firm of Gatu Magana & Co. Advocates. That there was therefore no doubt that the citee is the spouse of the deceased, that the citation was served on Gatu Magana &Co Advocates, they received service and filed Memorandum of Appearance, that the intention of service, as set out in Omar Shallo vs Jubilee Party of Kenya & Another[2017] eKLR, that service is premised on the right of every person to be heard, hence be notified so as to respond appropriately and defend themselves. The citor submits;“It remains the Applicant’s firm submission that the Citee herein ought to take out letters of administration as it is only then that all persons with liabilities can claim from the Estate of the late Dominic Mukui Kimatta. It cannot be said that the Limited Grant of Letters of Administration Ad Colligenda Bona Defuncti covers the scope of the Deceased’s Estate and therefore the citee should not take on the letters of administration. Further, seeing that the sole proprietorship does not enjoy perpetual succession it falls part of the Deceased’s estate, and the Citor’s Claim can only be against the Administrator of that Estate. It is on this basis that the applicant herein cites the respondent to show cause as to why she has not taken out letters of administration for the Estate of Dominic Mukui Kimatta more than one year after he passed on and in the instance that she fails to do so, the Citor herein should be granted leave to do so.”

21. I have carefully considered the Affidavits, the Submissions, and the issues for determination are; (i) Whether the citor complied with the requirement of service, and if not what is the effect of the same.It had been argued that the person named in the Citation is unknown to the firm of Gatu Magana Advocates, or the administrators of the estate under Limited Grant. It was also argued that the Memorandum of Appearance was entered simply because the Citation would affect the estate of Dominic Mukui Kimatta, with respect to the law firm of Kimatta & Co. Advocates. However a reading of the Memo of Appearance shows that a Memo of Appearance was entered for the citee, not for the firm of Kimatta & Co. Advocates, the Submissions are filed for citee, by advocates describing themselves as advocates for the citee. In fact, the record will show that Ms. Magana has appeared for citee and made Submissions, for the citee, one time seeking time to enable the citee file the Petition, citing the delay as having been caused by the fact that some of the family members were out of the country.

22. On May 10, 2021 Mr. Kisila submitted that Ms. Magana had asked for sixty (60) days to file the Petition, Mr. Kisila objected that that was too long. The record shows;“Ms. Magana: It is not an undisputed debt, some of the family members are out of the country, who would be the administrators, identify the assets, 21 days, not sufficient. 90 days would be ok.”Court: Let the citee have 60 days, since the process did not start today. The petitioner to have 60 days up to July 12, 2021 to file the petition. Mention before the Deputy Registrar to confirm filing.”

23. In the interim the Limited Grant was issued to the two (2) advocates, Ms. Magana was of the view that the Citation was spent, while Mr. Kisila was instructed to proceed with the hearing of the Citation.

24. It is clearly evident therefore that Ms. Magana has all along appeared for citee and represented the citees interest in the matter. It would appear that the obtaining of the Limited Grant was intended to forestall the filing of a Petition by the citee, in compliance with the orders of the court of May 10, 2021. That cannot be the case.

25. The Limited Grant gives the two (2) administrators the following powers;1. To manage, handle and deal with all pending legal suits and any other legal briefs in the said firm of Kimatta & Company Advocates.2. To access and operate all/and any existing Bank Accounts held in any Bank in Kenya in the name of Kimatta & Co. Advocates, both client and office accounts.3. To access and obtain Safaricom Mpesa statements for the deceased’s telephone No. xxxxx.4. To remit to the clients any monies held on behalf of such clients in any client accounts of Kimatta & Co. Advocates.5. To issue Bill of Costs and to collect an outstanding legal fees/costs due to Kimatta & Co. Advocates and to if necessary lodge in court any such Bills of Costs for taxation and recovery in the name of Kimatta & Company Advocates.6. To pay accrued and accruing staff salaries, office rent, utility bills, overheads and any other running costs in the firm of Kimatta & Co. Advocates.7. To charge and be paid a reasonable fee for the work done.8. To wind up the firm within a reasonable period.9. Upon winding up the firm, to account to the family of the deceased and to this court for any remaining profits. Such profits shall fall to the deceased’s Estate.10. To perform any other tasks or functions as may be necessary for effectual management, operation and winding up of the firm of Kimatta & Co. Advocates.

26. It is quite clear that the grant is limited to the affairs of the firm of Kimatta & Co. Advocates. Section 79 of the Law of Succession Act.“S. 79. Property of deceased to vest in personal representativeThe executor or administrator to whom representation has been granted shall be the personal representative of the deceased for all purposes of that grant, and, subject to any limitation imposed by the grant, all the property of the deceased shall vest in him as personal representative.”

27. The two (2) administrators have a limited grant, that does not cover the entire estate of the deceased. Theirs is related to the management, winding up of the firm, the rest of the estate remains without an administrator. Section 79 speaks to both the limited grant and the grant that is not limited and with respect to the latter it is the administrator upon whom “All the property of the deceased vests.” This can only be an administrator appointed out of Section 66 of the Law of Succession Act. The two (2) advocates do not fall under the said category, and their limited grant does not give them power all of the deceased’s estate.

28. The 2nd issue is; (ii) Whether the citor has locus to bring this citationIt is on record that what he is asking for is not a disputed debt. It arises out of an order of the court and there is documentary evidence to support his claim. Prima facie, he is owed money by the estate, and that is why he has come before this court. The Affidavit of Mr. Musembi Ndolo concedes that they, as administrators with respect to the affairs of the law firm and being aware of this claim, have not checked with the deceased’s bank where the money was sent. It is also from the citee’s submissions and Mr. Ndolo’s Affidavit that the citor may have to be compensated from other assets of the estate, that may not be necessarily from the firm. All these add up to demonstrate why the citor has locus to bring this citation to secure what the deceased owed him. It is conceded that whatever comes from the winding up will form part of the estate of the deceased, the citor’s debt, forms part of that estate, as much as it proceeds from matters of the firm.

29. The third issue; Is the court functus officio? Definitely not, as I have demonstrated the limited grant is limited to the affairs of Kimatta & Co Advocates, law firm. The authorities cited demonstrate the need for a specialized person, an advocate to deal with that aspect of the estate, with the rest of the estate, nothing stands in the way of the widow, who stands in priority from making the Petition for Grant of Letters intestate for the administrator of the rest of the estate.

30. In the upshot I make the following orders;1. That the Citation is merited.2. That the firm of Gatu Magana & Co. Advocates has represented the citee, hence she is known, was properly served and represented.3. That Limited Grant issued to the two (2) advocates in Nakuru High Court Succession Cause Number E055/2021 does not stand in the way of the widow filing for full grant of the estate of the deceased.4. The citee has not demonstrated any reason why she has not complied with the court order of October 5, 2021, hence, the order is re-issued to be complied with within forty five (45) days hereof in default then the citor will be at liberty to bring the Petition.Orders accordingly.

DATED, SIGNED AND DELIVERED VIA EMAIL THIS 4TH DAY OF JULY, 2022. MUMBUA T. MATHEKA,JUDGE.CA EdnaGatu Magana & Co. AdvocatesSheth & Wathigo Co. Advocates