[2023] KEHC 19690 (KLR)

In re Estate of James Kihara Kabue (Deceased) (Succession Cause E398 of 1991) [2023] KEHC 19690 (KLR) (Family) (23 June 2023) (Ruling)

Neutral citation: [2023] KEHC 19690 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause E398 of 1991

MA Odero, J

June 23, 2023

IN THE MATTER OF THE ESTATE OF JAMES KIHARA KABUE (DECEASED)

Between

Nancy Wanjiku Kahara

Petitioner

and

Racheal Wanjiru Kabui

Objector

Ruling

1. Before this Court are two applications for determination as follows:-(i)Summons dated September 6, 2021 filed by the Objector Rachel Wanjiru Kibui seeking the following orders:-“1. That this Honourable Court be pleased to issue a Grant of Letters of Administration to one Rachel Wanjiru Kabui in respect to the Estate of James Kahara Kabue (Deceased) now that Nancy Wanjiku Kahara has passed away.2. That costs be in the cause."

2. The summons is brought pursuant to Rule 49 of theProbate and Administration Rules; Section 66 (a) of the Succession Act (Cap 160) Laws of Kenya and any other enabling provisions of law and is supported by the affidavit of even date sworn by the objector.

3. The Objector Mary Wambui Kahara opposed this application through the Replying Affidavit dated May 10, 2022. (ii)Summons dated September 15, 2021 by which the Applicant Samuel Kabue Kahara and Mary Wambui seeks the following orders:-“1. That Samuel Kabue Kahara And Mary Wambui Kahara be substituted as parties in place of Nancy Wanjiku Kahara herein.2. That cost of this application be in the cause”

4. The application was supported by the Affidavit of even date sworn by the Objectors. The Respondent Nancy Wanjiku Kahara opposed the application through the Grounds of opposition dated June 14, 2022 premised on the following grounds:-“1. That the application is incompetent as it does not lie in law.2. That administering the Estate is in person and the legal administrator of a deceased person has no automatic right to become an administrator.3. That the order of priority is laid down in the Act under Section 39 of the law of Succession Act and a grandchild ranks lower than a daughter or a sister.4. That the Respondents have no legal standing to bring this application.5. That the Application is a design to obstruct and undermine a quicker determination of the matter and distribution of the Estate.”

5. The two applications were canvassed by way of written submissions. The Objector filed the written submissions dated June 14, 2023 whilst the Applicants relied upon their written submissions dated September 4, 2022.

Background 6. This Succession Cause relates to the estate of the late James Kahara Kabue (hereinafter ‘the Deceased’) who died intestate on September 19, 1990.

7. The Deceased was survived by the following persons:-(a)Nancy Wanjiku Kahara - Widow(b)Charity Wambui - Mother(c)Rachel Wanjiru - Sister(d)Anne Njoki - Sister(e)Carol Muthoni - Daughter(f)Mary Wambui - Daughter(g)Samuel Kabue - Son(h)Salome Njeri - Daughter

8. The estate of the Deceased comprised of a half portion of LR No Dagoretti/Uthiru/273.

9. Following the demise of the Deceased Grant of letters of Administration Intestate was on October 28, 1992 made to the widow Nancy Wanjiku Kahara. The Administrator filed a summons for confirmation of Grant dated April 3, 2017. However Rachel Wanjiru Kabui a sister to the Deceased filed a Protest dated September 8, 2017 objecting to the proposed mode of distribution of the estate.

10. The matter was then referred for Court Annexed Mediation (CAM) and an Agreement was reached. The Mediation Settlement Agreement dated September 28, 2018 was duly adopted by the court on September 2, 2019.

11. Before the Grant could be confirmed the sole Administrator Nancy Wanjiku Kahara also passed away leaving the estate without an Administrator. The parties herein have now filed the application dated September 6, 2021 and September 15, 2021 seeking to have themselves appointed as administrators to replace the said Nancy Wanjiku Kahara.

Analysis and Determination 12. I have carefully considered the two applications before this court, the replies filed thereto as well as the written submissions filed by both parties.

13. It is common ground that the widow of the Deceased Nancy Wanjiku Kahara who was appointed as the sole Administrator of the estate passed away on before the Grant issued to her could be confirmed. It is not in dispute that the parties reach a settlement Agreement following mediation. However as things now stand there exist no Administrator to midwife the confirmation of the Grant.

14. The objector Rachel Wanjiru Kabui who is ‘sister’ of the Deceased and the Applicants Samuel Kabue and Mary Wambui who are the children of the Deceased all seek to be appointed as Administrator to replace the late Administrator. There is a second Administrator Lawrence Kahara who is not mentioned by any of the parties and does not appear to be a party to this cause.

15. As a general rule where there is more than one Administrator and one of them passes away then the duties of Administrator automatically devolve to the surviving Administrator. In such circumstance there would be no need to substitute the deceased Administrator.

16. Section 81 of the law of Succession Act, Cap 160 laws of Kenya provides as follows:-“Upon the death of one or more of several executors or administrators to whom a grant of representation has been made, all the powers and duties of the executors or administrators shall become vested in the survivors or survivor of them:Provided that, where there has been a grant of letters of administration which involve any continuing trust, a sole surviving administrator who is not a trust corporation shall have no power to do any act or thing in respect of such trust until the court has made a further grant to one or more person jointly with him.”

17. However where there is good reason and in cases where there is a continuing trust the court may in its discretion appoint an additional administrator when one Administrator passes away. In Re Estate Of Tuaruchiu Marete (Deceased)[2019] eKLR the court stated as follows;-“(11)There are however situations where an additional administrator should be appointed. For instance where there is a resulting trust, a sole surviving administrator is required to apply for an additional administrator to be appointed which failing the court will appoint on its own motion. Similarly, where the intestate is polygamous, death of one of the administrator may require a replacement for purposes of the house he represented. Or for a good cause and in the best interest of all persons concerned the court may appoint an additional administrator of an estate. This is in discretion under section 66 of the Law of Succession Act. Therefore, there is no complete prohibition of appointing another administrator in addition to a surviving administrator or administrators. Nothing wrong in the appointment of the first administrator herein.”

18. In the instant case all the parties are in agreement that there is need to appoint an additional Administrator to replace the Deceased Administrator. Section 66 of the Law of Succession Act provides a general guide as to who ranks in priority to be appointed as an Administrator. The Objector who is the sister of the Deceased ranks lower in priority to the Applicants who are the children of the Deceased.

19. The Objector has not given any valid reason as to why she ought to be appointed as an Administrator yet the children of the Deceased are available and are willing to be appointed as Administrators. The Objector was not a ‘dependant’ of the Deceased under the terms of Section 29 of the Law of Succession Act therefore she has no interest or locus standi in this Succession Cause.

20. The Objector contends that the estate property was actually being held by the Deceased ‘in Trust’ for herself and others. The Objectors claims to the suit property ought to be prosecuted in the Environment and Land Court and not in this Probate Court.

21. Finally, I find no merit in the Objectors plea to be appointed as Administrator. The children of the Deceased who are also the children of the Deceased Administrator are the ones who are best placed to replace the Administrator. I therefore make the following orders:-1)The summons dated September 6, 2021 is dismissed in its entirety.2)The summons dated September 15, 2021 is allowed.3)Samuel Kabue Kahara and Mary Wambui Kahara are appointed as Administrators of the estate of the Deceased.4)The Grant issued on October 28, 1992 be and is hereby confirmed.5)The estate to be distributed in accordance with the Mediation settlement Agreement dated September 28, 2018. 6)This being a family matter each side will bear their own costs.

DATED IN NAIROBI THIS 23RD DAY OF JUNE, 2023. …………………………………..MAUREEN A. ODEROJUDGE