[2023] KEHC 25439 (KLR)

In re Estate of Jan Chris Esselink (Deceased) (Succession Cause 66 of 2020) [2023] KEHC 25439 (KLR) (20 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25439 (KLR)

Republic of Kenya

In the High Court at Eldoret

Succession Cause 66 of 2020

RN Nyakundi, J

November 20, 2023

IN THE MATTER OF THE ESTATE OF JAN CHRIS ESSELINK

In the matter of

Bill Esselink

1st Petitioner

Jackline Chemtai John

2nd Petitioner

Nicole Hendrick Je Esselink

3rd Petitioner

Judgment

1. What is pending before this court is the summons for confirmation of grant dated November 3, 2023. The grant of letters of administration was issued by this court on 20th September 2023 to the administrators herein.At the time of his death on April 23, 2022, the deceased had no spouse and left behind the following beneficiaries;1. Bill Esselink – Son2. Jackline Chemtai John – Daughter3. Nicle Je Esselink - Daughter

2. The estate of the deceased comprises of the following properties;a.Kiuga Farm L.R No. 772/7 50 ACRESb.Kipkabus Farm - L.R No. 8013/1 20 ACRESc.Kipkenyo Land - 2. 5 ACRESd.Illula Farm L.R No. 6101 60 ACRESe.Bank Account at Stanbic Bank account No. 010000267xxxx.f.Bank Account at Absa Bank No’s. 003106xxxx, 203887xxxx, 203887xxxx and 203928xxxx.g.Bank Account at DTB Bank.h.Motor Vehicle Registration No. KBS xxxV.i.Motor Vehicle Registration No. xxx 139. j.Shares at Kakuzi, Kapchorua Tea Kenya PLC, Sasin PLC, Williamson Tea Kenya PLC, NCBA Group PLC, Stanbic Holdings PLC, Cables Ltd, Kengen PLC, Kenya BOC Kenya Ltd BAT Ltd, Carbacid, C02 Ltd, EABL, Mumias Sugar Company Ltd, Unga Ltd, Safaricom Ltd.

3. This cause is non contentious as all the parties are in agreement with the distribution of the estate and have provided proposed modes of distribution. The 1st and 2nd Administrators filed their affidavit on the proposed mode of distribution on September 11, 2023 whereas the 3rd administrator filed hers on November 14, 2023.

4. Article 27 of the Constitution of Kenya provides as follows;27. Equality and freedom from discrimination(1)Every person is equal before the law and has the right to equal protection and equal benefit of the law.

5. Section 38 of the Law of Succession Act provides as follows;Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of sections 41 and 42, devolve upon the surviving child, if there be only one, or shall be equally divided among the surviving children.

6. Guided by the legal principles espoused in the statutes above and upon considering the affidavits on record and the proposed modes of distribution I hereby order that the estate of the deceased shall be distributed as follows;ITEMNO PROPERTY/SHARES DESCRIPTION SHARE PER BENEFICIARY (DISTRIBUTION)

1. Kiuga Farm L.R No.772/2 Measuring Approximately 50 Acres To be shared equally among the 3 Beneficiaries namely Bill Esselink, Jackline Chemtai John and Nicole Hendrick Je Esselink

2. Kipkabus Farm L.R No.8013/1Measuring approximately 20 Acres To be shared equally among the 3 Beneficiaries namely Bill Esselink, Jackline Chemtai John and Nicole Hendrick Je Esselink

3. Illula Farm L.R No.6101Measuring approximately 60 Acres To be shared equally among the 3 Beneficiaries namely Bill Esselink, Jackline Chemtai John and Nicole Hendrick Je Esselink

4. Kipkenyo ParcelMeasuring approximately 2. 5 Acres To be shared equally among the 3 Beneficiaries namely Bill Esselink, Jackline Chemtai John and Nicole Hendrick Je Esselink

5. Bank Account at Stanbic BankAccount No.010000267xxxx To be shared equally among the 3 Beneficiaries namely Bill Esselink, Jackline Chemtai John and Nicole Hendrick Je Esselink

6. Bank Account at Absa Bank Account No.003106xxxx. To be shared equally among the 3 Beneficiaries namely Bill Esselink, Jackline Chemtai John and Nicole Hendrick Je Esselink

7. Bank Account at Absa Bank Account No. 203887xxxx To be shared equally among the 3 Beneficiaries namely Bill Esselink, Jackline Chemtai John and Nicole Hendrick Je Esselink

8. Bank Account at Absa Bank Account No. 203887xxxx To be shared equally among the 3 Beneficiaries namely Bill Esselink, Jackline Chemtai John and Nicole Hendrick Je Esselink

9. Bank Account at Absa Bank Account No. 203928xxxx. To be shared equally among the 3 Beneficiaries namely Bill Esselink, Jackline Chemtai John and Nicole Hendrick Je Esselink

10. Money in Deceased’s Bank account at DTB Bank To be shared equally among the 3 Beneficiaries namely Bill Esselink, Jackline Chemtai John and Nicole Hendrick Je Esselink

11. Motor Vehicle Reg No. KCT 483T Bill Esselink Absolutely

12. Motor Vehicle Reg No. KBS 241V Jackline Chemtai John Absolutely

13. Motor Vehicle Reg No. KSD 139 Nicole Hendrick Je Esselink Absolutely

14. All the Farm Implements and Domestic Animals To be shared equally among the 3 Beneficiaries namely Bill Esselink, Jackline Chemtai John and Nicole Hendrick Je Esselink

15. 18,880 Shares in British American Tobacco 6294 shares -Bill Esselink6293 shares-Jackline Chemtai John 6293 shares-Nicole Hendrick Je Esselink

16. 3000 Shares in A. Baumann 1000 shares -Bill Esselink1000 shares-Jackline Chemtai John1000 shares-Nicole Hendrick Je Esselink

17. 132,500 Shares in Absa Kenya PEC 44167 shares -Bill Esselink44167 shares-Jackline Chemtai John 44166 shares-Nicole Hendrick Je Esselink

18. 3510 Shares in BOC Kenya PEC 1170 shares -Bill Esselink1170 shares-Jackline Chemtai John 1170 shares-Nicole Hendrick Je Esselink

19. 422280 Shares in Carbacid Investment 140760 shares -Bill Esselink140760 shares-Jackline Chemtai John 140760 shares-Nicole Hendrick Je Esselink

20. 99450 Shares in East African Breweries Ltd 33150 shares -Bill Esselink33150 shares-Jackline Chemtai John33150 shares-Nicole Hendrick Je Esselink

21. 6431 Shares in Kengen 2144 shares-Bill Esselink2144 shares-Jackline Chemtai John2144 shares-Nicole Hendrick Je Esselink

22. 57836 Shares in Kenya-re 19279 shares -Bill Esselink19279 shares-Jackline Chemtai John19279 shares-Nicole Hendrick Je Esselink

23. 202073 Shares in Kenya Power 67358 shares -Bill Esselink67358 shares-Jackline Chemtai John67358 shares-Nicole Hendrick Je Esselink

24. 16020 Shares in Kapchorua Tea 5340 shares -Bill Esselink5340 shares-Jackline Chemtai John5340 shares-Nicole Hendrick Je Esselink

25. 90841 Shares in KCB Bank 30280 shares -Bill Esselink30280 shares-Jackline Chemtai John30281 shares-Nicole Hendrick Je Esselink

26. 7630 Shares in Liberty Holdings 2543 shares -Bill Esselink2543 shares-Jackline Chemtai John2544 shares-Nicole Hendrick Je Esselink

27. 144461 Shares in NCBA(B01) 48154 shares -Bill Esselink48154 shares-Jackline Chemtai John48154 shares-Nicole Hendrick Je Esselink

28. 49011 Shares in NCBA(B18) 16337 shares -Bill Esselink ,16337 shares-Jackline Chemtai John16337 shares-Nicole Hendrick Je Esselink

29. 274400 Shares in Mumias 91467 shares -Bill Esselink91467 shares-Jackline Chemtai John91466 shares-Nicole Hendrick Je Esselink

30. 30492 Shares in Nation MediaGroup 10164 shares -Bill Esselink10164 shares-Jackline Chemtai John10164 shares-Nicole Hendrick Je Esselink

31. 196310 Shares in Sasini Tea 65437 shares -Bill Esselink65437 shares-Jackline Chemtai John65436 shares-Nicole Hendrick Je Esselink

32. 10400 Shares in Stanbic Holding 3467 shares -Bill Esselink3467 shares-Jackline Chemtai John3466 shares-Nicole Hendrick Je Esselink

33. 22694 Shares in SCBK 7565 shares -Bill Esselink7565 shares-Jackline Chemtai John7564 shares-Nicole Hendrick Je Esselink

435500 Shares in Safaricom Ltd 145167 shares -Bill Esselink145167 shares-Jackline Chemtai John145166 shares-Nicole Hendrick Je Esselink

34 9691 Shares in Standard Group 3230 shares -Bill Esselink3230 shares-Jackline Chemtai John3231 shares-Nicole Hendrick Je Esselink

35. 44740 Shares in Unga Ltd 14914 shares -Bill Esselink14913 shares-Jackline Chemtai John14913 shares-Nicole Hendrick Je Esselink

36. 5000 shares -Bill Esselink5000 shares-Jackline Chemtai John5000 shares-Nicole Hendrick Je Esselink

37. Dividends if any on Shares in Paragraph 15-37 To be shared equally among the 3 Beneficiaries namely Bill Esselink, Jackline Chemtai John and Nicole Hendrick Je Esselink

38 Kshs. 25,000,000/= held by Henry Kenei Under Kenei & Associates Advocates LLP To be recovered and shared equally among the 3 Beneficiaries namely Bill Esselink, Jackline Chemtai John and Nicole Hendrick Je Esselink

7. Whereas the parties have agreed on the distribution, something must be said about the contentions Kshs. 30,000,000/- that was withdrawn for the purpose of defraying the expenses of the estate under mysterious circumstances. Section 55 of the Law of Succession Act states as follows;(1)No grant of representation, whether or not limited in its terms, shall confer power to distribute any capital assets constituting a net estate, or to make any division of property, unless and until the grant has been confirmed as provided by section 71. (2)The restriction on distribution under subsection (1) does not apply to the distribution or application before the grant of representation is confirmed of any income arising from the estate and received after the date of death whether the income arises in respect of a period wholly or partly before or after the date of death.

8. Further, as the withdrawal was instigated by one of the administrators, it is imperative that this court emphasize the duties of administrators as was set out in section 83 of the Law of Succession Act as follows;83. Personal representatives shall have the following duties-(a)to provide and pay, out of the estate of the deceased, the expenses of a reasonable funeral for him;(b)to get in all free property of the deceased, including debts owing to him and moneys payable to his personal representatives by reason of his death;(c)to pay, out of the estate of the deceased, all expenses of obtaining their grant of representation, and all other reasonable expenses of administration (including estate duty, if any);(d)to ascertain and pay, out of the estate of the deceased, all his debts;(e)within six months from the date of the grant, to produce to the court a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings therewith up to the date of the account;(f)subject to section 55, to distribute or to retain on trust (as the case may require) all assets remaining after payment of expenses and debts as provided by the preceding paragraphs of this section and the income therefrom, according to the respective beneficial interests therein under the will or on intestacy, as the case may be;(g)within six months from the date of confirmation of the grant, or such longer period as the court may allow, to complete the administration of the estate in respect of all matters other than continuing trusts, and to produce to the court a full and accurate account of the completed administration.(h)to produce to the court, if required by the court, either of its own motion or on the application of any interested party in the estate, a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings therewith up to the date of the account;(i)to complete the administration of the estate in respect of all matters other than continuing trusts and if required by the court, either of its own motion or on the application of any interested party in the estate, to produce to the court a full and accurate account of the completed administration.

9. In this cause there are three administrators and therefore, any decisions made with regards to the estate must have the input of all three administrators. It is apparent that the withdrawal of funds for the alleged purpose of defraying the expenses of the estate was at the instruction of one administrator and therefore there was no concurrence among the administrators. It is my considered view that this was in contravention of section 55 of the Law of Succession Act. However, I take note that the parties have since reached a resolution on how to settle this particular issue by distributing the balance of the sums equally amongst themselves upon recovery of the same and therefore there is no further dispute or contention as to the distribution of the estate.

10. The estate shall be distributed as stated above and the administrators are to render accounts within six months in order for the cause to be marked as closed.It is so ordered.

DELIVERED, DATED AND SIGNED AT ELDORET ON THIS 20THDAY OF NOVEMBER 2023In the presence ofMr. Tanui AdvocatesMr. Gatama AdvocatesMr. Njoroge AdvocatesAll the beneficiaries………………………………………..R. NYAKUNDIJUDGE