[2022] KEHC 11804 (KLR)
The court found that an audit and valuation of the estate were necessary to facilitate fair distribution among beneficiaries and ordered the parties to agree on a common auditor and valuer, failing which the court would appoint from proposed lists. Regarding the interlocutory injunction, the court held that there...
Source-derived case information.
- Citation
- [2022] KEHC 11804 (KLR)
- Parties
- Applicant: Jennifer Waruguru Kibicho; Respondent: Edith Wangu Kibicho
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 2309 of 2015
- Procedural Posture
- Succession Cause / Ruling on Interlocutory Applications Prior to Confirmation of Grant
- Outcome
- Audit and valuation of the estate ordered; application for interlocutory injunction dismissed; costs in the cause.
- Judges
- AO Muchelule
- Legal Topics
- Succession and Inheritance, Confirmation of Grant, Administration of Estates, Interlocutory Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jennifer Waruguru Kibicho
Applicant
Edith Wangu Kibicho
Respondent
Procedural Posture
Succession Cause / Ruling on Interlocutory Applications Prior to Confirmation of Grant
Legal Issues
- 1 Whether an audit and valuation of the estate should be conducted before confirmation of grant.
- 2 Whether an interlocutory injunction should issue restraining the administratrix from dealing with or disposing of estate property.
Ratio Decidendi
The court found that an audit and valuation of the estate were necessary to facilitate fair distribution among beneficiaries and ordered the parties to agree on a common auditor and valuer, failing which the court would appoint from proposed lists. Regarding the interlocutory injunction, the court held that there was no verified evidence that the administratrix intended to dispose of any estate property, and in any event, she lacked legal capacity to do so before confirmation of grant unless with court authority. The application for injunction was therefore dismissed as speculative.
Court Disposition
Audit and valuation of the estate ordered; application for interlocutory injunction dismissed; costs in the cause.
Orders
- Parties to agree on a licensed audit firm and valuer within 30 days; failing which, court to appoint from lists provided by each side.
- Appointed auditor and valuer to provide report to court within 60 days of appointment.
Full Case Text
Judgment text and source record
23 paragraphs
In re Estate of James Kareu Kibicho (Deceased) (Succession Cause 2309 of 2015) [2022] KEHC 11804 (KLR) (Family) (9 May 2022) (Ruling)
Neutral citation: [2022] KEHC 11804 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Family
Succession Cause 2309 of 2015
AO Muchelule, J
May 9, 2022
IN THE MATTER OF THE ESTATE OF JAMES KAREU KIBICHO (DECEASED)
Between
Jennifer Kibicho
Applicant
and
Edith Kibicho
Respondent
Ruling
1. The deceased James Kareu Kibicho died intestate on August 5, 2014 in Nairobi. He left a widow Edith Wangu Kibicho (the respondent/administratrix) and seven children, two of whom Jennifer Waruguru Kibicho and Carol Wangui Kibicho have a separate mother.
2. A grant of letters of administration intestate was granted to the administratrix on January 14, 2016, and by application dated November 8, 2019 she sought the confirmation of the grant. The estate left is quite substantial. It has twenty parcels of land, some of which are in Karen in Nairobi, shares in 15 companies and two motor vehicles. The administratrix proposed that she gets all the property alone. This was supported by her biological children Pauline Wandete Kibicho, Margaret Njeri Kibicho, Daniel Mwangi Kibicho, Maurine Wangeci Kibicho and Benson Kinyua Kibicho. Jennifer Waruguru Kibicho (the applicant) filed a protest to the summons for confirmation opposing the proposal by the administratrix whom she said was only entitled to a life interest over the property. She sought her share of the estate, saying that the beneficiaries were each entitled to an equal claim to the estate. She was, however, amenable to the property being held by the respondent in trust for the children in equal shares, but that this should be after audit and account of the entire estate. She said that some of the properties forming the estate had been left out of the schedule, and that there had been no provision for liabilities. The summons for confirmation has not been heard and determined.
3. The applicant has two applications, one dated May 17, 2021sought the audit and valuation of the estate of the deceased before the hearing and determination of the application for confirmation. The administratrix accepted to have the audit and valuation done, but proposed that each party provides own auditors and valuers to carry out the work. The applicant sought to have a common auditor and valuer to carry out the work. The estate is substantial. Audit and valuation will help in the distribution of the estate. I order that, within 30 days, the parties shall agree on a licensed audit firm and a licensed valuer to carry out the work. Failing which the court will appoint from a list of 5 audit firms and valuers that each side shall propose. After the appointment, the auditor and valuer shall carry out their work and provide a report to court within 60 days.
4. The second application by the applicant was dated October 1, 2021and substantially sought interlocutory injunction against the administratrix dealing with the estate, including disposing of it. The applicant stated that she had credible information that the administratrix was in the process of disposing of one of the most valuable assets of the estate, which is LR No 209/2689 (IR 5413). The administratrix denied that she intended to dispose of the property in question, or any other property of the estate.
5. It is clear from the material in support of the application that there is no verified evidence that the respondent seeks to sell any of the properties of the estate. In any case, under section 82(b)(ii) of the Law of Succession Act (cap. 160) the respondent would not have the power or capacity to sell any of the immovable properties of the estate before her grant has been confirmed. The alternative would be that she applies to court for authority to sell. She has not made such a request. It means that the claim that the respondent is about to sell the property in question is merely speculative. The application is consequently dismissed.
6. I ask that costs be in the cause as this is a family dispute.
DATED AND DELIVERED AT NAIROBI THIS 9THDAY OF MAY 2022. A.O. MUCHELULEJUDGE