[2017] KEHC 9093 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

FAMILY DIVISION

SUCCESSION CAUSE NO. 905 OF 2015

IN THE MATTER OF THE ESTATE OF GEOFFREY MWANGI CHEGE - DECEASED

CAROLINE NJERI.....................................................................1ST APPLICANT

GEOFFREY CHEGE..................................................................2ND APPLICANT

ERSUS

JOSEPH MUTURI KAMAU....................1ST EXECUTOR/1ST RESPONDENT

JUDY NDUTA CHEGE............................2ND EXECUTOR/2ND RESPONDENT

RULING

1. The deceased Geoffrey Mwangi Chege died on 18th June 2014. He left a Will dated 5th March 2014 whose joint executors were his friend Joseph Muturi Kamau (1st executor) and his daughter Judy Nduta Chege (2nd executor). The Will had identified the deceased’s beneficiaries as the 2nd executor, Jane Muthoni Chege (daughter); Lucy Waruinu Chege (daughter); and Geoffrey Chege and Caroline Njeri (children of his late son Stephen Mwangi Chege). The estate comprised shares in Weithaga Investment Company Ltd; Donyo Sabuk/Komarock Block 1/33265; Kiosk in Embakasi; his portion in Loc.10/Kahuti/382; Nairobi/Block 82/843; LR No. 209/8336/189; Safaricom Limited Shares; Genam Properties Ltd shares; funds in Kenya Commercial Bank; and Ruiru/Ruiru East Block 3/1822.

2. On 21st April 2015 the executors petitioned this court for the grant of probate of written Will. The grant was issued on 30th November 2015.

3. On 2nd August 2016 Caroline Njeri and Geoffrey Chege (the applicants, being the children of the deceased’s late son Stephen Mwangi Chege) filed this application under section 83 (h) of the Law of Succession Act (Cap.160)seeking the following orders:-

(a) a full and accurate inventory of the assets and liabilities of the deceased from 18th June 2014 to date;

(b) an accurate account of all the rents, profits, income and dividends received from the assets of the deceased from 18th June 2014 to the date of the account; and

(c) an accurate account of all dealings therewith up to the date of the account.

To support the application, the applicants swore that they were beneficiaries of the estate who were entitled to ¼ share. They stated that the assets left by the deceased generated rental income, dividends and profits and, before the grant was confirmed, they want an account of the same. They alleged that since the grant, the executors had failed to apply for its confirmation and had failed to inform them of the status of the assets. They wanted the orders granted so as to facilitate the expedient administration of the estate in accordance with the deceased’s Will.

4. In response, the executors swore a replying affidavit in which they gave a “statement of comprehensive income” from June 2014 to August 2016. They also gave a summary statement of liabilities. It was explained that parcel Ruiru/Ruiru East Block 3/1822 was undeveloped with no income; LR 209/8336/189 was developed with a rental income of Kshs.300,000/= per quarter; Safaricom Limited Shares were 21,300; Weithaga Investment Company Limited Shares were 2; and Genam Properties Limited had no shares. After the payments of all medical expenses of the deceased, debts and testamentary expenses of the estate of the deceased the residue money at Kenya Commercial Bank A/C No. [...] was Kshs.24,291/80; a joint account No. [...] at CFC Stanbic Bank had been opened into which all the income of the estate (including the properties to which the applicants were not entitled as per the Will) go and from all the expenses of the estate are paid; and, lastly that the estate’s current liability was Kshs.2,931,283/= which amount included Kshs.493,500/= and Kshs.290,000/= which were loans advanced to the estate by Lucy Waruinu Chege and Judy Nduta Chege, respectively, towards the settlement of the deceased’s medical expenses. The details of the income, and expenditure and liabilities were annexed to the affidavit.

5. The applicants filed a supplementary affidavit to state that what the executors had presented was not a full and accurate inventory of the assets and liabilities of the estate of the deceased. In the first place, they complained that the executors had not filed documents along with the petition for grant of probate to show that the assets mentioned existed. Secondly, that the executors had intermeddled with the estate by unlawfully drawing money from the deceased’s account No. 1100087036 at Kenya Commercial Bank. They stated that it was in this account that rental income from LR No. 209/8336/189, pension payments and CBA Trust Fund disbursements were being made. They claimed that the executors had unlawfully opened CFC Stanbic Bank Account No. 0100004035768 in their joint names into which income from the estate was being diverted and withdrawn without leave of the court. Large sums had allegedly been withdrawn from the accounts without leave. Further, it was their case that the deceased had left a hospital bill, but that a harambee was arranged which raised funds that paid it (Kshs.3,955,768/=) leaving a balance of Kshs.817,727/= and a doctor’s bill of Kshs.355,500/=. It was therefore not true that the medical expenses were Kshs.4,652,260/=. It was also stated that the alleged current liability of Kshs.2,931,253/= was not true. Lastly, that there were payments of Kshs.1,983,500/= paid to Lucy Waruinu Chege and to the 2nd executor and a total of Kshs.623,710/= paid for Jane Muthoni Chege that were unlawful. In all, they stated that the statement of account by the executors was false and a fabrication and deliberately done to deny them of their share of the income from the estate.

6. In the written submissions by Mrs. Kibe for the applicants it was stated that the executors had been casual and evasive in responding to the application for accounts. It was sought that they should be ordered to give a proper account. First, that they had not provided title documents, share certificates, and records of dividends paid from the shares. The disclosure was required to accompany the filing of the petition, it was argued. Secondly, the income from the properties had not been particularized, and the statement of the rental income had not been provided, including the lease agreements. Regarding the alleged payments, it was complained that there were no vouchers and receipts. Thirdly, the materials from the bank account did not indicate for what purpose they were being made.

7. According to the written submissions by M/s Wambani for the executors, her clients had provided a full and accurate inventory of the assets and liabilities of the deceased’s estate; there had been no intermeddling; they had dealt with the estate in accordance with the law, in particularsections 79, 82,and83of theLaw of Succession Act. Counsel relied on the decisions in In Re the Estate of Thiongo Nginyayu Muthiora (deceased) [2013]eKLRandIn Re the Estate of David Kyuli Kaindi (Deceased) [2016]eKLR.

8. It is notable that following the applicant’s application on accounts, the executors did on 9th September 2016 file an application to have the grant confirmed. The application was opposed by the applicants, and that matter is pending.

9. The matters that the applicants deponed to in the supplementary affidavit remained not answered as the executors did not seek to file any response to them. I accept that the executors have not provided title documents and/or searches of the parcels that they are in charge of under the grant of probate. In respect of the shares, they did not avail the certificates. There was no evidence of the dividends that have been received on the shares. In their statement of account they did not indicate that in respect of the deceased medical bill, any harambee was conducted and how much was received and how it was applied. This is what was going to be compared with the version by the applicants. Thirdly, in respect of rental income it was incumbent upon the executors to state the house or property that has been rented, by whom and for how much per month; the payments per month, and into which account the payments were being made. For purposes of transparency and accountability, the tenants have to be disclosed. Lastly, in respect of the bank withdrawals it had to be shown for what purpose they were made, and the payment vouchers, etc, had to be shown.

10. I am mindful that the application by the applicants simply sought a full and accurate account of the assets and liabilities; rents, profits, income and dividends; and all dealings with the estate to date. The application did not ask for a finding on intermeddling, and so on. It was expected that when a full and accurate account was made then the applicants could agree or not agree to the confirmation.

11. It is also material that there was no limitation imposed in the grant of probate that was issued to the executors. Under section 79 it is stated that:-

“the 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 in the grant all the property of the deceased shall vest in him as personal representative.”

The powers that were granted were subject to section 45(1) that disallows intermeddling. Under sections 79, 82and83 the executors stepped into the shoes of the deceased in regard to the properties of the estate. They were under a duty to manage the estate of the deceased. They were the persons to sue or be sued in protection of the estate. They had power to enter into contracts on behalf of the estate, and to enforce contracts that existed between the estate and third parties. They had power to sell assets, to convert them into money, to invest estate funds, and so on.

12. Beneficiaries have the statutory right to obtain an account from the executors of the estate, and at any time they may ask for estate books and documents (In the Matter of the Estate of Anthony Gichigi Wairire (Deceased) HC P & A NO. 32 of 1983 at Eldoret). This is because an executor or administrator is a trustee and is accountable to the beneficiaries for his handling of the estate administration. Further, the executor or personal representative is accountable to the court on how he deals with the estate of the deceased. (Paul Rono Pymto & Another –v- Giles Tarpin Lyonnet [2014]eKLR.

13. ustice Musyoka in In Re Estate of David Kyul Kaindi (Deceased) (above) was discussing the responsibility of an executor or representative to account when he stated that –

“the personal representative must give account of the assets and liabilities that he has ascertained, and the assets that the has collected, gotten in, recovered or gathered and the titles he has perfected, and the steps taken to preserve the estate. He should also state the debts and liabilities that he has paid or settled before moving to court for confirmation of the grant, and if he has not yet settled the debts, state how he proposes to have them settled. The account at this stage should also state the assets that generate income, stating how much has been collected and how it has been utilized.”

14. It is on the basis of what I have said in the foregoing that I find that the executors did not provide a full and accurate account of the assets and liabilities of the estate and rents, profits, income and dividends received from the property of the estate, and how they had applied the same. It is decided that within sixty (60) days from today such full and accurate account be filed and served. Costs shall be in the Cause.

DATED and SIGNED at NAIROBI this 23rd day of MAY, 2017

A. O. MUCHELULE

JUDGE