[2022] KEHC 10830 (KLR)

In re Estate of Gregory Ndambuki Muoki (Deceased) (Succession Cause 2252 of 2004) [2022] KEHC 10830 (KLR) (Family) (2 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10830 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 2252 of 2004

AO Muchelule, J

June 2, 2022

IN THE MATTER OF THE ESTATE OF GREGORY NDAMBUKI MUOKI (DECEASED)

Between

Gregory Sakaja Kiendi

1st Applicant

Bibiana Mwongeli Ogeto

2nd Applicant

and

Bartholomew Kilinda Ndambuki

1st Respondent

Mike Mbevi Ndambuki

2nd Respondent

Benedicto Kan’gela Ndambuki

3rd Respondent

Ruling

1. The deceased Gregory Ndambuki Muoki died intestate on 30th December 1997. He was survived by his widow Philomena Mwongeli Ndambuki and nine (9) children. On 18th August 2005 the widow applied for a grant of letters of administration intestate. The grant was issued on 19th May 2006. Following the demise of the widow, a fresh joint grant was issued to her children Bartholomew Kilinda Ndambuki (1st respondent), Mike Mbevi Ndambuki (2nd respondent) and Benedicto Kang’eli Ndambuki (3rd respondent) on 27th July 2011.

2. The deceased left several properties that included LR No. 209/3271/71.

3. The present application is dated 10th June 2019 brought by the applicants Gregory Sakaja Kiendi and Bibiana Mwongeli Ogeto seeking the revocation of the grant issued to the respondents on the grounds that:-a.the surviving administrators have failed and/or refused to have the grant confirmed 13 years after the got the grant on 19th May 2006;b.they have refused and/or failed to complete the process of the distribution of the deceased’s estate to the respective dependants;c.they have failed to renew the lease of LR No. 209/3271/71 thereby exposing the estate to substantial loss;d.they have refused and/or failed to pay rates to the Nairobi County Government over the property, which rates have accumulated to Kshs.18,867,090/=; ande.they have failed to properly and effectively administer the estate in accordance with the law.

4. The applicants swore a supporting affidavit to state that they were the deceased’s grandchildren, in the sense that the 1st applicant was the son of Kiendi Ndambuki and the 2nd applicant was the daughter of Susan Mbuli, who are a son and daughter of the deceased, respectively. They complained that that since the respondents had failed to apply for the confirmation of the grant, had refused to pay rates on the property above, had not distributed the estate to the beneficiaries, the deceased’s family had met on 11th January 2019 and resolved to have them removed as administrators and to replace them with the applicants to be able to have the grant confirmed and the estate distributed. They stated that the administrators (respondents) had not accounted to them over the administration of the estate.

5. The 3rd respondent swore a replying affidavit to support the application. His case was that the 1st respondent had since died, and that the 2nd respondent was difficult, evasive, uncooperative and has been dealing with the estate in total disregard of him and the other beneficiaries and has refused to account to them regarding the proceeds of the estate. Further, that he had distributed parts of the estate without waiting for the confirmation of the grant.

6. The 2nd respondent opposed the application and stated that the applicants, grandchildren of the deceased, did not have capacity to bring the application, when they had no consent of their parents and other beneficiaries. He swore that failure only to apply for the confirmation of the grant was not enough ground to revoke the same. He stated that he had subdivided the deceased’s farm at Kyaa village in a bid to distribute it to the beneficiaries, which in itself was effort good enough to show diligence in dealing with the estate.

7. The application was brought under Sections 47 and 76 of the Law of Succession Act (Cap. 160) and Rules 44(1), 49 and 73 of the Probate and Administration Rules. Counsel for the applicants and respondents filed written submissions, each in support of his clients’ case. I have considered the submissions.

8. Section 76 of the Act provides as follows:-“A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—(a)that the proceedings to obtain the grant were defective in substance;(b)that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;(c)that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;(d)that the person to whom the grant was made has failed, after due notice and without reasonable cause either—(i)to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or(ii)to proceed diligently with the administration of the estate; or(iii)to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or(e)that the grant has become useless and inoperative through subsequent circumstances.”

9. The Court may on its own motion, or the application of any interested party, revoke a grant that has been issued to an administrator who had failed, after the notice and without reasonable cause, to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court may order or allow. It may revoke the grant if the administrator has failed to proceed diligently with the administration of the estate.

10. The grant to the respondents was issued on 27th July 2011. For nearly 8 years they did not apply for the confirmation of the grant. The 3rd respondent is the co-administrator of the 2nd respondent. He stated that the 2nd respondent has kept him out of the administration of the estate; that he is uncooperative, difficult and evasive to deal with. The 1st respondent died. Certainly, the 2nd and 3rd respondents are not working together hence the difficulty that the estate finds itself in. The 3rd respondent is not now opposed to having the applicants take over the administration of the estate.

11. The applicants are the grandchildren of the deceased. They cannot directly inherit from the deceased. They can only inherit through their parents, who are still alive. In the presence of their parents and their siblings, they cannot be entitled to the grant in respect of the estate of the deceased. Technically, they have no legal basis to seek the revocation of the grant and to have them replace the administrators of the estate of the deceased. However, the value of their application was that it brought to the notice of the court that the joint grant that was issued to the respondents in 2011 has not been confirmed since; that the respondents have not sought the confirmation. The respondents cannot escape responsibility for this transgression of Section 76 of the Act. Their fiduciary responsibility to the estate, the beneficiaries and the court was to collect, gather and preserve the estate, pay out any liabilities and distribute the net estate to the beneficiaries. This was required under Section 71 of the Act. The grant was supposed to be held for six (6) months and then request be made to confirm it. The request was to include a proposal on the distribution of the estate. The respondents were not diligent. I consider that the 1st respondent subsequently died, but, before his death, he was equally guilty of inaction.

12. The fact that the remaining respondents are not working together to manage and administer the estate does not make the situation any better.

13. Consequently, on the court’s own motion, I revoke the joint grant that was issued to the respondents on 27th July 2011 with costs by the 2nd and 3rd respondents.

14. So that the estate is not left unmanaged, with the likelihood that it might go to waste, I appoint Gabriel Musau Ndambuki, Silvanus Kiendi Ndambuki, Agatha Nthenya Ndambuki and Mary Ndumba Ndambuki as the administrators of the estate, with directions that within 60 days, they, or any of them, shall apply for the confirmation of grant and serve the rest of the beneficiaries who shall respond within 21 days. The matter shall be mentioned on 7th November 2022 for directions on hearing.

15. In the meantime, the 2nd and 3rd respondents are hereby ordered to, within 60 days file and serve a full and accurate account and inventory of their dealing with the estate of the deceased from 27th July 2011 to date. Parties served shall be at liberty to respond within 21 days. The same shall be considered along with the summons for confirmation.

DATED AND DELIVERED AT NAIROBI THIS 2ND DAY OF JUNE, 2022. A.O. MUCHELULEJUDGE