[2023] KEHC 25611 (KLR)

In re Estate of Fredrick Muhanda Matheri (Deceased) (Succession Cause 2461 of 2012) [2023] KEHC 25611 (KLR) (Family) (17 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25611 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 2461 of 2012

MA Odero, J

November 17, 2023

IN THE ESTATE OF FREDRICK MUHANDA MATHERI(DECEASED)

Between

Onesmus Matheri Ndegwa

1st Applicant

Zacharia Kuria Ndegwa

2nd Applicant

Matheri Kabugua

3rd Applicant

Francis Mwangi Kabugua

4th Applicant

Rachel Wanjiru Kimani

5th Applicant

and

Mathew Matheri Muhanda

1st Respondent

Peter Gathumbi Muhanda

2nd Respondent

Ruling

1. Before this court for determination is the summons for confirmation of grant dated 20th December 2022 by which the Applicant Peter Gathumbi Muhanda seeks the following orders“That the honourable court be pleased to confirm the grant of letters of administration issued in this matter on 17th September 2021”

2. The application was supported by the Affidavits of even date sworn by the Applicant.

3. The Respondent opposed the application through the grounds of Opposition dated 31st January 2023 as well as the Replying Affidavit of the same date sworn by Onesmus Matheri Ndegwa the 1st Respondent/Administrator.

4. The matter was canvassed by way of written submissions. The Applicant filed the written submissions dated 12th June 2023 whilst the Respondents relied upon their written submissions dated 5th July 2023.

Background 5. This succession cause relates to the estate of the late Fredrick Muhanda Matheri(hereinafter the deceased) who died intestate on 20th November 1998. Following the demise of the deceased grants of Letters of Administration intestate was on 15th November 2010 made to one Mathew Matheri Muhanda. The grant was duly confirmed on 21ST July 2011 and rectified on 17th September 2021.

6. The applicant herein then filed a summons for revocation of grant dated 11th October 2012 alleging that the Administrator had not informed him of the Succession Cause and that he had not been involved in the case despite his being a beneficiary to the estate of the deceased.

7. Thereafter a fresh grant was jointly issued to Onesmus Matheri Ndegwa, Mathew Matheri Muhanda, Matheri Kabugua and Nancy Wairimu Kimani on 17TH September 2021. The Applicant then filed this summons seeking to have the Grant confirmed in his own name.

8. The Applicant avers that he was wishes to have all the four (4) Administrators removed due to their failure to apply to have the Grant confirmed. He further alleges that some of the named administrators are not children of the deceased. That since it was the applicant who filed the summons for revocation of Grant, the Grant now ought to be confirmed in his name alone.

Analyis and Determination 9. I have carefully considered the summons for confirmation of Grant, the reply filed thereto as well as the written submissions filed by both parties, the only issue for determination is whether the present application has merit.

10. A close perusal of this file reveals that a certificate of confirmed Grant was issued to the four (4) Administrators on 20th July 2011. That confirmed Grant was rectified on 17th September 2021

11. The Applicant claims that the grant issued to the Administrators was revoked. This is not the correct position. Whilst it is correct that a summons for revocation of Grant dated 11th October 2012 was filed by the applicant, that summons was compromised by a consent entered into on 15th July 2021. That consent provided inter alia1. “That the summons herein dated 11th October 2017 be and is hereby allowed as prayed.2. That Onesmus Matheri Ndegwa, Matheri Kabugua, Mathew Matheri Muhanda and Nancy Wairimu Kimani be and are hereby appointed administrators and administratrix respectively to replace the said Mathew Matheri Muhanda as the sole administrator of the estate of the deceased herein”

12. That consent was duly adopted by the court on 17th September 2021. Upon adoption the consent became an order of the court and bound all parties.

13. If the Applicant wishes to challenge the consent or seek to have the same set aside then he must file a substantive motion seeking orders to set aside the consent.

14. The consent set out the names of four (4) administrators of the estate. It is only the four (4) who can jointly file a summon to confirm the Grant.

15. The applicant is not one of the Administrators of the estate. As such he does not have the legal capacity to file a summons to confirm the Grant.

16. If the applicant seeks to have the Administrators removed then his only option is to file a fresh summon for revocation of grant since the previous summon he had filed was compromised through the consent.

17. Finally I find no merit whatsoever in this summons. The same is dismissed in entirety. This being a family matter each side will meet its own cost.

DATED IN NAIROBI THIS 17TH DAY OF NOVEMBER, 2023…………………………………MAUREEN.A ODEROJUDGE