[2023] KEHC 22944 (KLR)

In re Estate of Jackson Mubia Waweru (Deceased) (Succession Cause 125 of 2016) [2023] KEHC 22944 (KLR) (3 October 2023) (Ruling)

Neutral citation: [2023] KEHC 22944 (KLR)

Republic of Kenya

In the High Court at Murang'a

Succession Cause 125 of 2016

J Wakiaga, J

October 3, 2023

Between

John Waweru Mubea

Petitioner

and

Lawrence Waweru Mubea

1st Objector

Njogu Mubea

2nd Objector

Ruling

1. Before me are two applications for determination as per the directions thereon issued by Kimondo J on the 1st day of March 2022 by way of written submissions but before going into the said applications, a little back ground analysis of this cause is necessary.

2. This cause was originally filed in the Principal Magistrate’s Court at Muranga as Succession Cause number 283 of 1989 between John Waweru Mubea and Mbaire Mubia as the Petitioner and the Objector respectively. It was thereafter transferred to the High Court of Kenya at Nairobi and after several years within the corridor of justice on 9th day of September 2016 Justice Musyoka delivered a judgement thereon in which he found as a fact that the deceased left a valid Will which was made on the 26th day of February 1979 and 4th March 1979 but did not appoint executors.

3. The good judge proceeded to make the following Orders thereon:a.That I hereby appoint John Waweru Mubia and Lawrence Waweru Mubia as the administrators of the estate of the deceased.b.That the Grant of letters of administration with written Will annexed shall issue to them accordingly.c.That the administrators or any one of them shall apply within the next thirty (30) days of the date of this judgement for confirmation of the Grant to be issued to them under Order (b) above.d.That as the estate of the deceased comprises of assets wholly situated within Muranga County this matter shall be transferred forthwith to the High Court of Kenya at Muranga for final disposal and (emphasis added)e.There shall be no order as to cost.

4. On the 18th day of July 2018 the Objectors under certificate of urgency filed an application seeking Orders against the Petitioner from destroying or in any way alienating the estate of Jackson Mubea Waweru until the proceedings are finalized, the Petitioner be ordered to account for the money collected as rent in respect to the building/house sitting on Plot No 10 Muthithi and Plot No 2 Munguini since 1999 to date and finally that the Honourable Court be pleased to order that all the money/income generated from the building / house sitting on Plot No 10 Muthithi and Plot No 2 Munguini be deposited in a joint account to be agreed by the beneficiaries.

5. This application was supported by the affidavit of Lawrence Waweru Mubea in which he deposed that being aggrieved by the judgement herein he instructed his Advocates on record to file an application for leave to file an appeal out of time which application was still pending for determination.

6. That in the meantime the Respondent without consultation with the other beneficiaries had started demolishing the buildings constructing part of the estate without taking into account the fact that he had been collecting rents from the said buildings without sharing the same with the other beneficiary as had been agreed and without rendering accounts.

7. In response to the application it was deposed that the application was uncalled for since there was nobody interfering with the estate. It was contended that Plot No 10 Muthithi was bequeathed by the deceased to his brother Peter Nduati and the same has had exclusive use of the same with the full knowledge of the Applicant who did not raise any objection while he was utilizing Plot No 2 which was bequeathed to him by the deceased.

8. It was deposed that the Applicant and his brother the 2nd Objector was bequeathed Plots No 4 and 27 respectively which they had not utilized and that each of the beneficiaries had settled in their respective places save for the Applicant who had forcefully remained on No Loc 6 Munguini which was bequeathed to him and his brothers and had refused to relocate to Loc 17/Iganjo which was bequeathed to him and his siblings.

9. This application was not certified urgent and was later on withdrawn by the Applicant.

10. On 16th March 2021 the 1st Objector filed an inventory of the assets of the estate in compliance with the provision of section 83(e) of the Law of Succession Act and demanded that his co-Administrator surrender all the monthly rents accruing from Plots No 10 Muthithi and No 2 Munguini into the Court until the Grant is confirmed.

11. Having filed the inventory herein above, the Applicant simultaneously under certificate of urgency filed Summons General in which he named himself and the second Objector as Plaintiffs and Kenya Commercial Bank Ltd 1st Defendants Kenya Farmers Association, 2nd Defendant in which he sought the following orders;a.The Court be pleased to stop issuance of any confirmation of Grant of Letters of Administration with will annexed and revoke any such existing confirmed Grant pending the hearing of the application.b.The honourable Court be pleased to restrain and/or stop the Respondent from destroying disposing off or in any way alienating the estate of Jackson Mubea Waweru pending the hearing of the application.c.The Court be pleased to order the Respondent to account and declare all the money collected in regard to rent in Plot No 10 Muthithi , Plot No 1 Munguini Market and Plot No 2 Munguini Market since 1999 to date and to render a true statement of account of the same and give a full account of the dealing in Loc 6 Munguini/258, Loc 6/Munguini/801, Loc 6 Munguini/189, Loc 17 Iganjo /656, KCGCU shares, Posho mill and Sewing machine .d.The Petitioner be ordered to surrender all monthly rents accruing from the deceased rented Plots No 10 Muthithi, Plot No 1 Munguini Market and Plot No 2 Munguini Market from 1st January 1988 to date.e.The Court be pleased to order the Petitioner to produce a statement of account regarding all past rent from 1st January 1988. f.The money so accounted to be deposited in a joint account by the Co-Administrators or in the alternative he be allowed to produce an accurate inventory of the assets and liabilities of the estate.

12. The application was based on the grounds that the estate was yet to be confirmed and that the Petitioner was intermeddling with the estate to the detrimental of other beneficiaries.

13. On the same date 16th March 2021, the Applicant took out another summons General in which he sought for an Order to Kenya Commercial Bank limited for the production of documents either original and or certified copies in connection to account number 173042798 of duly executed account opening forms and any other documents that bears the signature or handwritten information by Jackson Mubea Waweru (deceased).

14. The Court issued an Order to Kenya Farmers Association for the production of any documents that bear Jackson Mubea Waweru signature and or handwritten information either original and or certified copies of his membership in the Association.

15. The application was grounded on the grounds that the Respondents possessed relevant documents which they were willing to release upon a Court Order and that the Defendants shall suffer no prejudice should the Order be issued.

16. The named Defendants did not enter appearance and neither did they file any response.

17. In response to the Petitioner deposed that the application was resjudicata in view of the judgement of the Court which had not been appealed against and therefore the application was an abuse of the Court process as it was seeking to adjunct the same from executing the said judgement in terms of the Will upon which the basis all the beneficiary had settled save for the 1st Objector.

18. It was contended that the issue of the authenticity of the Will had been addressed in the judgement herein and that the Applicant is not interested in pursuing an appeal.

19. The two applications were canvassed by way of written submissions and for the purposes of this Ruling, I shall have deposed of the application dated 1st March 2020 against Kenya Commercial Bank and Kenya Farmers Association.

Submissions 20. It was submitted that the Applicant was seeking to institute an application for review of the judgement herein by challenging the Will of the deceased and had engaged an expert to examine the signature of the deceased and there sought for discovery under the Provisions of section 22 of the Civil Procedure Act as was stated in the case of Concord Insurance Co Ltd v NIC Bank Ltd [2013] eKLR that the function of discovery was to provide the parties with the relevant documentary material before the trial and that if the application was allowed it would enable the Applicant to apply for review of the judgement herein as provided for in section 80 of the Civil Procedure Act.

21. In this matter there is no application for review before the Court and as it the validity of the Will herein stands. The parties upon which the order for discovery is sought have not been parties to this dispute and there is no record to show that the Applicant moved the Court to join them as parties to these proceedings.

22. As per rule 73 of the Probate and Administration Actthey can only be joined to these proceeding if it is proved that they are creditors of the estate and therefore find and hold that the application herein is an abuse of the process of the Court and an attempt by the Applicant herein to delay the conclusion of this cause noting that the Court in transferring the matter to this Court was clear that the purpose was solely for execution purposes and from the application herein I am afraid the Applicant has missed the boat.

23. Further joinder of parties as provided for in section 19 of the Civil Procedure Act is not known to the Succession Cause as was stated inIn Re Estate of Stone Kithuli Muinde (deceased) [2016] eKLR where the Court stated Succession Causes is designed for the sole purpose of facilitating Succession of the estate with the goal of distributing the same and there were no parties as Defendant and Plaintiff.

24. The application for discovery has also been brought too late in the day and I am in doubt that the application for review might succeed as the issue of the Will of the deceased has all along been within the knowledge of the Applicant.

25. I therefore find no merit on the application herein which I hereby dismiss with cost to the Respondents herein.

26. The second application by the is for injunctive reliefs and the rendering of accounts and it was submitted that the Respondent should have submitted accounts within six months from the date of issue of Grant and upon completion of the administration as was stated in the Re estate of Julius Mimano which was quoted with approval in the case of in Re Estate of Sarastino Mukabi (deceased) [2021] eKLR. It was therefore contended that the Respondent had not rendered accounts as required and therefore the Court should proceed to revoke the Grant and remove the Administrators.

27. On the preservatory Order, it is clear that the Applicant is seeking to restrain the Respondent from doing what he was ordered by the Court as a clear reading of the judgment of Musyoka J shows that Court had ordered both the Applicant and the Respondent to either apply for the confirmation of the Grant jointly or severally and that the issues of account can be settled once and for all should the Will of the deceased be executed in full.

28. The Respondent has filed an application for the confirmation of Grant dated 16th June 2022 in which he proposes to execute the Will of the deceased and to distribute the estate to the beneficiaries which action will be able to dispose of the Applicant’s application for account as the Respondent has deposed that the properties upon which the Applicant seeks accounts on had been bequeathed to specific beneficiaries as per the Will who have taken possession thereon.

29. There is no evidence tendered by the Applicant to demonstrate that that is not the position and that the Respondent has refused and or declined to render account as an Administrator to the said beneficiaries. Further the issues in contention were determined in Muranga Succession Cause No 283 of 1989 and therefore res judicata.

30. I therefore find and hold that the Applicant has not established as prima facie case for the grant of the orders sought and accordingly dismiss his application for preservatory Orders and for the rendering of account and direct that the executors herein proceeding with the execution of the Will of the deceased and upon which the same shall render accounts to Court as required under section 94 of the law of Succession Act.

31. Further the Applicant has not come to Court with clean hands as I take the view and hold that the same has been the cause of the delay in execution of the will herein taking into account the number of applications the same has filed since this cause was first filed and can therefore not blame the Respondent in failing to render accounts.

32. Having taken into account the history of this matter no any other application shall be filed in this cause save for the execution of the Will by any party without leave of the Court as litigating must come to an end in one way or the other at each levels of Court and as regards the high Court I take the view that it is not in the interest of justice for a matter to be pending in Court for a period of almost thirty-five (35) years.

33. This being a family dispute each party shall bear their own cost and it is ordered.

DATED, SIGNED AND DELIVERED AT MURANGA THIS 3rdDAY OF OCTOBER 2023J. WAKIAGAJUDGEIN THE PRESENCE OF:MR. WAWERU FOR MR. GICHACHI FOR ADMINISTRATOR (1ST)JACKLINE – COURT ASSISTANT