[2023] KEHC 26331 (KLR)

In re Estate of Gedion Rimbere alias Gedion M’rimbere (Deceased) (Succession Cause 152 of 1993) [2023] KEHC 26331 (KLR) (7 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26331 (KLR)

Republic of Kenya

In the High Court at Meru

Succession Cause 152 of 1993

EM Muriithi, J

December 7, 2023

IN THE MATTER OF THE ESTATE OF GEDION RIMBERE alias GEDION M’RIMBERE (DECEASED)

Between

Kenneth Mugambi Kirinya

Petitioner

and

Catherine Mwari Mureithi

Respondent

Ruling

1. By Summons under certificate of urgency dated 4/9/2023 brought under sections 47 of the Law of Succession Act, Rules 49, 63 and 73 of the Probate and Administration Rules, Order 42 Rule 1 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act and Article 159 of the Constitution, the applicant seeks, “2. That this Honorable Court be pleased to issue and order of temporary injunction restraining the respondent by herself, agents, servants, employees and anybody acting on her behalf in particular Evero Realtors from collecting rent and/or altering lease agreements of the tenants of Plot No. 32b Meru Town and Plot No. 6A Thege Market pending the hearing and determination of this cause.”

2. The application is premised on the grounds on the face of it and supported by an affidavit sworn by the applicant on even date. He avers that on 4/2/2020 this court directed the administrators to collect rent and deposit it in a joint account. Contrary to the said order, the respondent has appointed Evero Realtors to collect rent without approval of the court and instructed the said agent to interfere with the leases the tenants already have in Plot No. 32B Meru Town and Plot No. 6A Thege Market. The action of the respondent will trigger the tenants to file multiple cases regarding their existing lease terms and subject the estate to huge losses as to cost and expenses on the inevitable legal implication of the tenants lease terms. It is in the interest of the estate and justice that the respondent is restrained from changing the lease terms of the tenants and appointing the said agent contrary to the clear court orders.

3. The Respondent swore a replying affidavit on 20/9/2023 in opposition to the application. She avers that the applicant is a monotonous litigant whose sole intention is to illegally and selfishly continue benefitting from the estate of the deceased. After the court’s directions of 4/2/2020 that a joint account be opened for purposes of depositing rent proceeds owing to the subject properties, account No. 9783725548 with HFC Bank Ltd, was duly opened. On 16/7/2021, the court directed the applicant to deposit all rent proceeds since 20. 2.2020 to 16. 7.2021 at Ksh.38,000 per month, but the applicant made a paltry deposit and has since failed and/or neglected to render the deposits as ordered by the court. The appointment of the agent was necessitated by the applicant’s failure to comply with the court order.

4. The respondent urges that the actions of the applicant amount to intermeddling with the deceased estate, and the court should not aid the applicant in propagating an illegality by allowing his application. She avers that her purest intentions are to preserve the estate, as the monies deposited in the joint account can only be accessed through a court order. The allegation of the alteration of the lease agreements is neither here nor there, because it is only the account for the deposit of the rent proceeds that will change in order to conform to the approved and practicing Estate Agency already provided. The substance of the tenancies will remain undisturbed. She accuses the applicant of being in contempt of court orders and coming to court with unclean hands.

5. In his supplementary affidavit sworn on 27/9/2023, the applicant expresses his willingness to cooperate with the respondent in the administration of the estate herein.

6. In her further affidavit sworn on 11/10/2023, the Respondent urges that the applicant still receives the rent proceeds in blatant contravention of the court order to deposit the same into the estate account.

Submissions 7. The applicant accuses the respondent of solely appointing Evero Realtos to collect rent without consulting him. He relies on Giella v Cassman Brown (1973) EA 358 and Mrao v First American Bank of Kenya Limited & 2 Others (2003) KLR 125 to support his submissions.

8. The respondent did not file any submissions, choosing to rely on the Affidavits of 20/9/2023 and 11/10/2023.

Analysis and Determination 9. Having considered the application, the affidavits and the submissions on record, the issue for determination is whether the application is merited.

10. On 19/9/2019, the court (F. Gikonyo J) duly distributed the estate herein to the beneficiaries. Apparently from the averments by the parties herein, the distribution of the estate of the deceased is far from over.

11. Following the court’s directions that an estate account be opened for purposes of collecting rent, the same was duly opened with Housing Finance Bank. Both the applicant and the respondent, being the administrators of the estate were directed by the court to deposit the rent proceeds into the said account, but it appears only the respondent has been compliant.

12. In its ruling of 16/7/2021, the Court (Patrick J. O. Otieno J.) noted with disappointment at paragraph 22, 23 and 25 that:“Lastly, there has been the concern of the court that the orders of 20/2/2020 be complied with. When parties attended court on the 6/7/2021 Mr. Muchiri informed the court that his client collects average of Kshs. 38,000 per month while Mr. Gichunge said that his collect Kshs. 3,000 per month. Such admitted sums ought to have been deposited in the joint account as ordered by the court. The deposits made so far fall far too short of the sum due and those two individual owe it to court that the sum be deposited. I therefore direct that Mr. Muchiri’s client deposits a sum equivalent to a monthly rent of Kshs. 38,000 per month with effect from March 2020 todate. Mr. Gichunge’s client will also deposit into the account a sum equivalent to monthly rent of Kshs. 3,000 from March 2020 todate. Both must deposit the sum into the account before 20/8/2021. This matter will be mentioned on 02/12/2021 for the administrator to report on the progress made at transfer of shares to the beneficiaries and for a report with the aid of bank statements that estate rent shall have been deposited.”

13. Based on the exhibits adduced by the respondent, this court finds that the appointment of Evero Realtors is geared towards the preservation of the rent proceeds from the estate and not at all in breach of the court orders. After such appointment of the agent to collect rent on behalf of the administrators of the estate, some terms of the tenancy agreements had to certainly change, to accommodate for instance the changes in the banking details.

Orders 14. Accordingly, for the reasons set out above, the Court finds that the application dated 4/9/2023 is without merit and it is dismissed.

15. There shall be no order as to costs.Order accordingly.

DATED AND DELIVERED ON THIS 7THDAY OF DECEMBER, 2023. EDWARD M. MURIITHIJUDGE