[2022] KEHC 10357 (KLR)

In re Estate of Eutycus Muthui (Deceased) (Succession Cause 398 of 2012) [2022] KEHC 10357 (KLR) (5 May 2022) (Ruling)

Neutral citation: [2022] KEHC 10357 (KLR)

Republic of Kenya

In the High Court at Meru

Succession Cause 398 of 2012

TW Cherere, J

May 5, 2022

Between

Miriam Kendi Muthui

1st Applicant

Catherine Kinya Muthui

2nd Applicant

Joel Kithinji Muthui

3rd Applicant

and

James Kimathi Muthui

Respondent

Ruling

1. The parties in this matter are children of the deceased. The deceased’s estate was distributed in terms of an Amended Certificate of Confirmation of Grant dated 27thApril, 2020.

2. To date, the estate has not been distributed allegedly because James Kimathi Muthui who is the Administrator has refused and or declined to sign the transfer forms.

3. By summons dated 18th November, 2020 filed on 21st December, 2020, the Applicants sought orders that the Deputy Registrar of this court be empowered to sign the transfer forms on behalf of the Administrator.

4. By an order dated 18th March, 2021, this court made the following orders:1. The Administrator/1stRespondent is hereby granted 30 days from today’s date to complete the administration of the deceased’s estate in terms of Amended Certificate of Confirmation of Grant dated 27th April, 20202. In default of compliance with order (1) above, the Deputy Registrar of this court is hereby empowered to sign the transfer forms on behalf of the Administrator.

5. Yet still, the estate has not been distributed for the reason that Standard Chartered Bank Meru has not released discharge of charges for LR. No.Nyaki/kithoka/1449 And Lr. No.nyaki/kithoka/1450 and African Bank Corporation Limited (ABC) has similarly not released discharge of charge for L.R. No. Ntima/igoki/5454.

6. By her affidavit sworn on 24th January, 2022 in support of the Notice of Motion dated 24th January, 2022, the 1stApplicant accuses the Respondent of withholding the discharge of charges which he denies by his replying affidavit sworn on 15th February, 2022.

7. Section 83 of the Law of Succession Act Cap 63 Laws of Kenya (the Act) which deals with the duties of personal representatives provides that:(g)within six months from the date of confirmation of the grant,orsuch longer period as the court may allow, to complete the administration of the estate in respect of all matters other than continuing trusts,and to produce to the court a full and accurate account of the completed administration

8. I have considered the fact that inspite of numerous orders concerning the distribution of this estate, the Administrator has demonstrated that he is not keen to have this matter concluded. Had he been keen to conclude the distribution, it would have been expected that he would do everything within the powers donated to him under Section 83 of the Act to ensure that he has obtained the discharge of charges from Standard Chartered Bank and African Bank Corporation Limited (ABC). Other than deny that the same have been issued to him, the Administrator has not demonstrated his willingness to obtain them for the sake of completion of the distribution of the estate.

9. Being the administrator, the Respondent has entirely failed in his duties. Courts are not powerless when it comes to dealing with such wrong doing. The doctrine of abuse of process, based upon the inherent authority of every court to control its process and those persons who come before it, is a power incidental and necessary to the exercise of substantive jurisdiction. That power, together with rules of court and statutory provisions, enables the court to exercise its discretion to protect its integrity and process from abuse.

10. In Central Bank of Kenya & Another vs. Ratilal Automobiles Limited & Others Civil Application No. Nai. 247 of 2006, the Court of Appeal held that Judicial power in Kenya vests in the Courts and other tribunals established under the Constitution and that it is a fundamental tenet of the rule of law that court orders must be obeyed and it is not open to any person or persons to choose whether or not to comply with or to ignore such orders as directed to him or them by a Court of law.

11. InB vs. Attorney General [2004] 1 KLR 431,Ojwang, J (as he then was) appreciated the duty to obey court orders and stated that:“The Court does not, and ought not to be seen to, make Orders in vain; otherwise the Court would be exposed to ridicule, and no agency of the Constitutional order would then be left in place to serve as a guarantee for legality, and for the rights of all people.”

12. I have considered the Notice of Motion dated 24th January, 2022 and I find that it would not have been necessary had the Applicants herein had letters of administration to this estate for the reason that they would have had capacity to directly engage the banks.

13. Pursuant to the provisions of Section 47 of Act and in upholding this court’s duty to provide just, expeditious, proportionate and affordable disposal of cases, I find that it is in the best interests of all concerned that letters of administration issued to the Respondent be revoked.

14. From the foregoing, it is hereby ordered:1. Letters of Administration issued to James Kimathi Muthuion 03rd October, 2012are hereby revoked2. Miriam KendiMuthui, Catherine KinyaMuthui and Joel KithinjiMuthuiare appointed joint administrators of the estate3. Flowing from order No. (2), the order dated 18th March, 2021 empowering the Deputy Registrar of this court to sign the transfer forms on behalf of the Administrator ceases to have effect

3. Once Letters of Administration have been issued in terms of order (2) above, the Applicants should directly engage the respective banks for release of documents necessary to assist them completethe administration of the estate

MENTION ON 28TH JUNE, 2022 TO CONFIRM COMPLIANCE WITH THESE ORDERS DATED AT MERU THIS 05TH DAY OF MAY 2022T. W. CHEREREJUDGEAPPEARANCESCourt Assistant - Morris KinotiFor Applicants- Mr. Nyenyire for M/s. Kevin Nyanyire& Co. AdvocatesFor Respondent - Mr. Thangichia for M/s.ThangichiaM.David Advocates