[2021] KEHC 13148 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

FAMILY DIVISION

SUCCESSION CAUSE NO. 51 OF 1989

IN THE MATTER OF THE ESTATE OF JOHN CHEGE NDUATI (DECEASED)

CHARLES NDUATI CHEGE......................................................................1ST APPLICANT

JENNIFER MUMBI CHEGE....................................................................2ND APPLICANT

LUCY WAMBUI KIMANI.........................................................................3RD APPLICANT

IAN GITAU CHEGE...................................................................................4TH APPLICANT

SAMUEL KIMANI CHEGE......................................................................5TH APPLICANT

V E R S U S

MARYANNE WANJIKU CHEGE..........................................................1ST RESPONDENT

GEOFFREY MBUGUA KAMAU..........................................................2ND RESPONDENT

RULING

(1) Before this Court is the Chamber Summons dated 20th March 2018filed by the Applicants seeking orders as follows:-

(i) Spent

(ii) That the Administrators of the estate of the Deceased be compelled to submit a true and accurate inventory of the deceased assets and liabilities and a full accurate inventory of all the dealings.

(iii) That the leave be granted to the 5th Applicant, SAMUEL KIMANI CHEGE to be substituted as an administrator in place of both MARYANNE WANJIKU CHEGE and GEOFFREY MBUGUA KIMANI the Respondents herein.

(iv) That the Certificate of Confirmation of Grant be amended accordingly.

(2) The Summons which was premised upon Section 76(d), (ii), 83(e), (h)of the Law of Succession Act, Cap 160, Laws of Kenya, Order 37 Rule 12of the Civil Procedure Rules 2010, Section 37(1), 42(1)of the Trustee’s Actand all other enabling provisions of the law was supported by the Affidavit of even date sworn by SAMUEL KIMANI CHEGE(the 5th Respondent).

(3) The Administrators/Respondents opposed the Application and filed the Replying Affidavit dated 3rd May 2018sworn by the 1st Respondent MARYANNE WANJIRU CHEGE.The Application was canvassed by way of written submissions. The Applicants field their written submissions dated 20th November 2020,whilst the Respondents relied upon the written submissions dated 9th February 2021.

BACKGROUND

(4) This Succession Cause relates to the estate of the late JOHN CHEGE NDUATI(hereinafter “the Deceased”)who died intestate on 21st June 1988. The Respondents herein MARYANNE WANJIKU CHEGEand GEOFFREY MBUGUA KIMANItogether with one PAUL GITAU CHEGE(who is not a party to the present suit) were issued with a Grant of Letters of Administration to the estate of the Deceased. On 12th October 2011a Certificate of Confirmed Grant was issued. That Confirmed Grant was subsequently amended on 31st May 2017. A copy of the Amended Confirmed Grant is annexed to the Replying Affidavit dated 3rd May 2018(Annexture ‘MAW ‘1’).

(5) It is not in dispute that the Applicants are all beneficiaries of the estate. The Applicants aver that the Respondents being Administrators of the estate of the Deceased have failed, neglected and/or refused to distribute the assets of the Deceased to the beneficiaries as directed in the Confirmed Amended Grant. That as a result the estate has been in limbo for the past seven (7) years.

(6) That the Respondents/Administrators have failed and / or refused to disclose to the other beneficiaries their dealings in the estate of the Deceased and as a result the Applicants are apprehensive that the Respondents intend to take possession of the estate of the Deceased to their own benefit to the exclusion of the other beneficiaries. That as a result of this apprehension the 5th Applicant SAMUEL KIMANI CHEGEwent to the Land Registry in Kiambuand caused a restriction to be placed against the properties forming the estate of the Deceased and in particular against LIMURU/BIBIRIONI/1537pending the hearing and determination of the main suit. The Applicants further state that they have all consented to having the Applicant SAMUEL KIMANI CHEGEreplace the 1st Respondent MARYANNE WANJIKU CHEGEand the 2nd Respondent GEOFFREY MBUGUA KIMANIas Administrators of the estate and pray that the Grant be amended accordingly.

(7) As stated earlier the application was strenuously opposed. In the Replying Affidavit the 1st Respondent gave out a lengthy narrative of all the steps that have been taken by the Administrators to distribute the estate. She also set out a list of all the properties which had been sold and proceeds distributed to the beneficiaries as per the Confirmed Amended Grant. The 1st Respondent indicated that to date only three (3)of the properties forming the estate of the Deceased are yet to be sold being:-

- Limuru/Kamirithu/587/64

- Tigoni Mabrouke/2213

- Embakasi Ranching Plots

(8) The 1st Respondent averred that the Administrators are actively seeking purchasers for the above properties in which efforts she states have been hampered by the downturn in the economy in Kenya as a result of the Covid Pandemic.However the Administrators undertake that given time those three (3) remaining properties will also be sold and the proceeds distributed to all the beneficiaries. The Respondents urge the Court to dismiss the present application in its entirety.

ANALYSIS AND DETERMINATION

(9) I have carefully considered the Summons dated 20th March 2018,the Replying Affidavit dated 3rd May 2018as well as the submissions filed by both parties. The two issues which arise for determination are:-

(i) Whether the 5th Applicant should be substituted as Administrator to replace the 1st and 2nd Respondents.

(ii) Whether the Respondents should be ordered to submit an inventory and account of their dealings in the estate todate.

(i) Substitution of Administrators

(10) It is common ground that the Applicants and the Respondents are all beneficiaries to the estate of the Deceased. The Applicants claim that the current Administrators have failed to administer the estate in an open and transparent manner. That they are apprehensive that the Respondents will utilize the assets of the estate to their own benefit and exclude the other beneficiaries. It is averred that the beneficiaries have all consented to have the 5th Applicant substituting the 1st and 2nd Respondents as Administrators.

(11) It is trite law that he who alleges must prove. It is one thing to allegethat the current Administrators have acted improperly, it is quite another thing to prove such improper and/or illegal activity on the part of the said Administrators. Whilst the Applicants claim to be apprehensive that they may be denied their rightful inheritance, no evidence has been adduced to prove that this apprehension is warranted. There is no evidence that the current Administrators have misused or abused their position as Administrators in any way.

(12) To the contrary the Replying Affidavit has provided a lengthy and detailed narrative of how the Respondents have proceeded with the Administration of the estate. Clear evidence is provided regarding which properties have been sold and clear evidence is provided on how the proceeds of sale of those assets have been distributed. None of the averments in the Replying Affidavit have been challenged and / or controverted by way of a Supplementary Affidavit.

(13) Indeed from the Replying Affidavit it is evident that the estate has been largely distributed. I do not doubt the Respondents claim that the estate has been distributed by about 80%.The assertion by the Respondents that there are only three (3)properties remaining to be sold has not been disputed. Therefore the claim by the Applicant that the estate has been in limbo for the past seven (7)years cannot be true.

(14) Section 66of the Law of Succession Actauthorizes the Court to appoint the Administrators of any estate. In order to have an Administrator removed and / or substituted cogent reasons must be given. Mere innuendos and vague apprehensions will not suffice. Sufficient basis must be laid for the removal of an Administrator. The mere fact that one may not like the Administrator (which seems to be the case here) will not amount to proper justification for their removal.

(15) There is evidence that the Applicants approved and authorized the transactions (sales) conducted by the Administrators of the assets of the estate. At page 13Ato 13dof the Replying Affidavit is a hand written Memorandum regarding the sale of five (5)of the assets of the estate. This Memorandum was signed by the 1st, 2nd and 5th Applicants amongst others as well as by the 1st Respondent. None of the Applicants has denied having signed this document. Similarly vide a letter dated 17th September 2013 (see page 27Aof the Replying Affidavit) the Applicants including the 5th Applicant indemnified the Administrators in respect of their dealings in the estate property and went on to state thus:-

“… We do not have any complaints against the trustees and are happy and content with the agreed mode and manner of distribution …” [own emphasis]

(16) Once again no party has denied their signature on this document. There are several documents dated 24th January 2012(page 27of Replying affidavit), dated 6th February 2012(pages 28-30)in which the Applicants including the 5th Applicant have given instructions regarding where their share of the proceeds of sale were to be deposited. None of the Applicants has filed an Affidavit denying receipt of the proceeds as per their instructions.

(17) Likewise vide a letter dated 27th February 2014the Applicants including the 5th Applicant confirm having received from the Administrators the sum of Kshs. 823,250. 00each being their share of the proceeds from the sale of plots L.R. No. 2208, 2209, 2205 and 2212 whose sale they had authorized (page 42of the Replying Affidavit). Additionally there are two letters dated 10th January 2014by which the Applicants authorize the sale by the Administrators of Karanjee Plots 2213, 2212and 2209(pages 43 45).

(18) In short a close perusal of the Annextures to the Replying Affidavit dated 3rd May 2018reveals that the Applicants and in particular the 5th Applicant (who swore the Affidavit in support of this application to have the Administrators removed) did give authority for the sale by the Administrators of various assets of the estate and acknowledged receipt of their share of the proceeds. Having so authorized the sale of said properties it is duplicitous for the Applicants to turn around and allege that they were being kept in the dark regarding the manner in which the Deceased’s assets were being dealt with. The evidence clearly shows that the Applicants have at all times been kept in the loop regarding the manner in which the estate was being dealt with. I find the Respondents have proceeded with diligence and in transparent manner.

(19) Finally on this point it must be noted that a Confirmed Grant is in effect a certificate issued to an Administrator. The Grant cannotbe transferred to a different person. In order to remove and substitute the name of an Administrator it is required that the Confirmed Grant be revokedin line with Section 76, Law of Succession Actand a fresh Grant be issued in the name of a different party. An Administrator cannot be removed through an Amendmentto a Grant. Based on the above I find no justification for the prayer seeking to remove the 1st and 2nd Respondents as Administrators of the estate of the Deceased and I decline to grant prayers (iii)and (iv) of this Summons.

(ii) Inventory

(20) The duties of an Administrator are clearly set out in Section 83of the Law of Succession Act. Section 83(e) (f)and (g)provide as follows:-

“83 (a) ….

(b) ….

(c ) .…

(d) ….

(e) 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 dealing therewith up to the date of the account.

(f) Subject to Section 55 to distribute or 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 t he Will or on intestacy, as the case may be.

(g) 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.” [own emphasis]

(21) Therefore the requirement to render accounts is a statutory duty imposed upon the Administrator [s] of an estate. The Court may ‘suo moto’ order that accounts be submitted or any interested party may apply in Court for the same.

(22) In their written submissions the Applicants state that on 31st July 2018the court directed the Respondents to submit a true and accurate inventory of all their dealings in the estate and serve the same upon the applicants within thirty (30) days.The Applicants allege that the inventory was served upon them on 25th September 2020. Thus it is clear that the Respondents did prepare and serve an inventory as directed by the Court. The Applicants only complaint is that the said inventory was served on them late.

(23) In my view the Administrators have by the Replying Affidavit dated 3rd May 2018provided a detailed account of their dealing with the estate property. They should be allowed to complete distribution of the estate upon which final accounts may be submitted.

(24) Finally I find no merit in this application. The Summons dated 20th March 2018is dismissed in its entirety. I make no orders on costs.

DATED IN NAIROBI THIS 25TH DAY OF JUNE, 2021.

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MAUREEN A. ODERO

JUDGE