[2022] KEHC 13500 (KLR)

In re Estate of John Gitau Kimani (Deceased (Succession Cause 2 of 2016) [2022] KEHC 13500 (KLR) (6 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13500 (KLR)

Republic of Kenya

In the High Court at Kiambu

Succession Cause 2 of 2016

MM Kasango, J

October 6, 2022

Ruling

1. This Court does find that Jacenta Njeri Kamau (hereinafter Jacenta) has intermeddled with the deceased’s estate contrary to the provisions of Section 45 of the Law of Succession Act, Cap 160. That Section provides:-“45(1)Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.(2)Any person who contravenes the provisions of this section shall-(a)be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and(b)be answerable to the rightful executor or administrator to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration.”

2. There are two cases that discuss the section which I find useful to cite. The first is Gitau And 2 others Vs. Wandai & 5 others (1989) KLR 23. The second isIn re Estate of John Mathiu Inware (deceasd)(2020) eKLR.“Intermeddling with the estate will attract both civil and criminal sanction under section 45 of the Law of Succession Act. In its civil jurisdiction, a succession court may therefore grant civil remedies including the eviction of a trespassing intermeddler or injunction and other relief against a person who otherwise intermeddles, a term of art which means any dealing with estate property inconsistent with the Grant of Representation, in the estate of a deceased. The statutory injunction under section 45 that “no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person” is capable of protection and enforcement by an order for eviction of such a person. In addition, apart from the criminal penalty under section 45 (2), Section 46 of the Act obliges the police officers, administrative officers and chiefs to take steps to protect the estate of a deceased person.”

3. The deceased in this cause is John Gitau Kimani (deceased). He was survived by six children, amongst who is Jacenta. The assets of the estate are:-1Kiambaa/Kanunga/13152L.R. No. 7785/393

4. A grant was issued to one of the deceased’s sons Peter Kimani Gitau (hereafter Peter) on 20th December, 2012. That was when the succession cause was before the Kiambu Magistrate’s Court under the succession cause No. 298 of 2012. That cause was transferred to this Court, whereupon this Court entertained a summons for revocation of the grant, filed by Jacenta. Justice Joel Ngugi, by his Ruling of 7th March, 2017, appointed Peter as the sole administrator and the learned judge ordered the grant be confirmed before the expiry of six months.

5. Peter filed a summons dated 20th June, 2019 for confirmation of the grant. Jacenta filed an affidavit of protest to the summons for confirmation of grant. By a judgment dated 11th February, 2021, Justice C. Meoli confirmed the grant and part of that judgment the learned judge stated:-“In my view therefore, the administrator’s proposed mode of distribution accords with the law …In the circumstances, the court will allow the equal distribution of the two assets of the estate in the mode reflected in the schedule marked “PKG 2a” and “PKG 2b” in the summons for confirmation.”

6. By this present Ruling, the court is considering a Notice of Motion dated 25th November, 2021. It is filed by Peter as the administrator of this estate. Peter by his affidavit in support of the application stated that the confirmed grant was issued to him enabling him to proceed with the distribution of the deceased estate. Although Peter did not give a date, he deponed that Jacenta illegally erected structures on the portion of land parcel No. 7785/292, and that Jacenta has persons illegally occupying the said structures. Peter’s learned advocate gave Jacenta written notice to demolish the said structures because part of the land Jacenta has built those structures is land earmarked for distribution to two other beneficiaries. Jacenta through her advocate responded by letter dated 28th June, 2021 declining to demolish those illegal structures. Part of that letter written by Jacenta’s learned advocate is as follows:-“… our client above named is a daughter of the deceased. She has as much right as your client to occupy the subject property. True, the heirs of the deceased will have to move positions. But this must be done in a dignified manner and with full participation of all the affected parties. …In the premise, we advise that any precipitate (sic) action shall be strenuously defended by ourselves at your clients’ risk as to cost and other consequences.”

7. Peter deponed further in his affidavit that Jacenta has paid tenants on those illegal structures and hence why she is reluctant to vacate and demolish them. Peter’s concern and why he has approached this Court is that the actions of Jacenta are impeding his progress, as required under Section 83 of the Law of Succession Act to distribute the estate.

8. Jacenta failed an affidavit in reply. She depend that she is one of the children of the deceased; that in respect to the application, she is only enjoying the portion which was assigned to her by her deceased father; that Peter fails to understand his role as an administrator in that he has acted unilaterally by obtaining the services of a surveyor without involving other beneficiaries; and that she is amenable to a survey being carried out, which survey would involve all the beneficiaries.

Discussion and Determination 9. I have considered the affidavit and submissions of Peter and Jacenta.

10. The judgment of Justice C. Meoli, referred to above, confirmed the grant as sought by Peter. To date there was no appeal against that determination. With that in mind, I do not understand Jacenta’s contention that she is occupying the portion given by her deceased’s father. The learned Judge in confirming the grant approved the mode set out in Peter’s exhibit “PKG 2a” and “PKG 2b”. The first exhibit relates to a rough sketch of distribution of the property Kiambaa/Kanunga/1315. Names of the beneficiaries are indicted on that rough sketch showing where each will inherit. Each of them have road access to their portion. The second exhibit, which has brought about the present controversy relates to property LR.7785/393. This is the work of a licenced land surveyor. The land is divided in that there are subdivision amongst all the beneficiaries.

11. This Court having pronounced itself through the judgment of Justice C. Meoli the task of carrying out the distribution was upon the administrator, Peter. The duties of an administrator are well spelt out in Section 83 of the Law of Succession Act. The pertinent subsections are (f) and (g) of that section. They provide:-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;

12. The administrator is empowered by those subsections above to take possession of the deceased’s property/ies and to protect them from those who intermeddle with the same. That power extends to evicting any person who is in illegal occupation. Jacenta has intermeddled with deceased’s estate, within the provision of Section 45 of Cap 160 for being in illegal possession of the subject property, to the extent that she has encroached on the portions distributed to other beneficiaries and has proceeded to erect thereon illegal structures for rental. Her acts are contrary to expressly authorized acts, by Law or by grant.

13. Jacenta is not permitted to usurp the power of Peter, the administrator. But that is precisely what she has done with the support of her learned counsel. I believe, from the documents before court that advice given to Jacenta by her learned counsel has given Jacenta the confidence with which she has proceeded to act with impunity. Advocates bear a responsibility to ensure the rule of law is upheld and justice is served to all. Advocates have a duty to justice and professional honour. The actions of Jacenta’s learned counsel have gone below the bar.

14. Jacenta faulted the application under consideration on the ground that injunction cannot be granted in succession and on the ground that Peter seeks interim injunction which can only be granted pending conclusive orders.

15. Jacenta erred to submit as above. Section 47 of Cap 160 grants this Court’s wide powers. That power extends to granting protective orders for the purpose of safeguarding the estate of the deceased. That Section 47 provides:-“The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient.”

16. The Court of Appeal affirmed that power as cited in the case Millicent Mbatha Mulavu & Another vs. Annah Ndunge Malavu & 3 others (2018) eKLR as follows:-“17. Further, the Court of Appeal has pronounced itself on the issue of Injunctions. In the case of Floris Piezzo & another –vs- Giancarlo Falasconi (2014) eKLR, while considering whether an injunction can issue in a Succession Cause the Court of Appeal expressed itself as follows;‘We have carefully considered the grounds of appeal, rival written and oral submissions, and the law. The application before the high Court was for temporary injunction to restrain the appellants from dealing with the suit premises in a manner inimical to the estate of the deceased. The question which arose and had to be determined first was whether the Court had jurisdiction to grant an injunction in a Succession Cause. The appellants took the position that the Court had no such jurisdiction whereas the Respondent took the contrary position. However, the High Court was persuaded that Rule 73 of the Probate and Administration Rules reserved the Court’s inherent jurisdiction to allow for the grant of injunctions in deserving cases. We are in total agreement with this conclusion. We have no doubt at all that the Law of Succession Act gives the Court wide jurisdiction in dealing with testamentary and administration issues of an estate. Indeed Section 47 of the said Act gives the Court jurisdiction to entertain any application and determine any dispute under the Act and to pronounce such decree and orders as may be expedient. It cannot be said that such decrees and orders would exclude injunction orders. In other words, we are of the same view that Section 47 of the Act gives the Court all-embracing powers to make necessary orders, including injunctions where appropriate to safeguard the deceased’s estate. This section must be read together with Rule 73 of the Probate and Administration Rules which further emboldens Court’s jurisdiction to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of Court. We would imagine such orders would also include injunctive orders.’” (Emphasis mine).

17. The fact Peter sought interim injunction pending the hearing of the application was not erroneous. That prayer is in any case by now spent and it is of no consequence.

18. The remaining prayers being considered in this Ruling are that this Court does issue an order of eviction of Jacenta on the parcel No. 7785/393 and an order compelling Jacenta within 14 days to demolish the illegal structures erected on that parcel of land.

19. The latter prayer finds favour with me because Jacenta has her own home on the subject land and she shall not unnecessarily be put out of the land. I also understand Peter has his own structures thereon. What is the problem is that Jacenta apart from her home has erected other illegal structures which she is renting out.

20. I have already stated that Peter is the sole administrator of this estate and his obligations are well set out in the Cap. 160. Secondly, I have stated the grant was confirmed and the same not having been appealed remains the lawful order of this Court. This Court will therefore order the eviction of the tenants of Jacenta and the demolition of the structures they occupied.

Disposition 21. In respect to the application dated 25th November, 2021, I grant the following orders:-a.Jacenta Njeri Kamau shall within 30 days from today’s date remove the tenants occupying the illegal structure on LR 7785/393. b.In default of the above Peter Kimani Gitau the administrator of the estate of John Gitau Kimani (deceased) shall proceed to evict the said tenants and shall demolish those illegal structures at the cost of Jacenta Njeri Kamau.c.The Runda police station shall oversee the eviction and demolition by Peter Kimani Gitau to ensure law and order is maintained.d.Jacenta Njeri Kamau shall bear the costs of the application.e.A mention date shall be fixed for the administrator to report to the court the progress made in the distribution of the estate.

RULING DATED AND DELIVERED AT KIAMBU THIS 6TH DAY OF OCTOBER, 2022. MARY KASANGOJUDGEIn the presence of:-Coram:Court Assistant:- MouriceFor Jacenta Kamau:- N/AFor Peter Gitau:- Ms. OdiahCourtRuling delivered virtually.MARY KASANGOJUDGE