[2024] KEHC 675 (KLR)

In re Estate of John Wekesa Wafula alias Bengi (Deceased) (Probate & Administration E016 of 2023) [2024] KEHC 675 (KLR) (31 January 2024) (Ruling)

Neutral citation: [2024] KEHC 675 (KLR)

Republic of Kenya

In the High Court at Bungoma

Probate & Administration E016 of 2023

DK Kemei, J

January 31, 2024

IN THE MATTER OF THE ESTATE OF JOHN WEKESA WAFULA ALIAS BENGI (DECEASED)

MARGARET NANYAMA WEKESA …1st PETITIONER /APPLICANT

DAVID WAFULA WEKESA …………..2ND PETITIONER/ APPLICANT

VERSUS

MARY NAFULA WAMUKOTA ………………1ST RESPONDENT

JUDITH NELIMA WANYONYI ………………. 2ND RESPONDENT

Between

Margaret Nanyama Wekesa

1st Petitioner

David Wafula Wekesa

2nd Petitioner

and

Mary Nafula Wamukota

1st Respondent

Judith Nelima Wanyonyi

2nd Respondent

Ruling

1. The Petitioners/Applicants filed the present application dated 10. 7.2023 pursuant to section 47 of the Law of Succession Act, Rule 73 of the Probate and Administration Rules seeking the following reliefs: -i.Spentii.Spentiii.That this court be pleased to issue preservatory orders restraining the Respondents, their agents or servants or any other person from sub-dividing, selling, leasing, cutting trees or in any way wasting LR. NO. Bungoma/Ndalu/80 until Bungoma P& A Cause No. 16 of 2022 is concluded.iv.That the costs of the application be paid by the Respondents.

2. The application is supported by the grounds set out on the face thereof and by the affidavit of Margaret Nanyama Wekesa the 1st Petitioner sworn on even date. The Petitioners’ gravamen is inter alia; that the deceased herein was the allotee of parcel number Bungoma/Ndalu/80 having been allocated to him by the Settlement Fund Trustee and diligently paid therefor; that the Respondents who are children of the deceased have purported to interfere with the estate by selling 0. 2 acres of land within LR No. Bungoma/Ndalu/80 belonging to the deceased while these proceedings are still pending for determination; that the actions of the Respondents amount to intermeddling with the estate of the deceased and should be stopped.

3. The Petitioners filed a supplementary affidavit sworn on 8. 9.2023 upon being served with a response by the Respondents. It was averred inter alia; that the family of deceased have not held a meeting as alleged by the Respondents; that the land has not been subdivided to the beneficiaries; that the attempt to sell 0. 2 acres of the estate amounts to intermeddling; that it is prudent for the beneficiaries to be patient and wait for the conclusion of the succession proceedings and to know their respective shares on the ground; that land parcel Bungoma/ Ndalu/80 should be preserved and the Respondents be restrained from intermeddling with the estate.

4. The application is opposed. The 1st Respondent Mary Nafula Wamukota swore a replying affidavit sworn on 3. 8.2023 wherein she averred inter alia; that the application has been actuated by malice; that the allegations of wastage of the estate are false; that the 1st applicant is the Respondents step mother while the 2nd Respondent is their brother; that upon the demise of the deceased, the parcel number Bungoma/ Ndalu/80 was sub-divided by the clan in a accordance with the wishes of the deceased herein; that the sons of the deceased were each given 4 acres while the daughters were given 1. 4 acres; that most of the sons have sold their respective shares to willing buyers; that they have sold 0. 2 acres to a third party; that the petitioners have denied the Respondents from using and taking possession of their 1. 4 acres and that the 2nd Petitioner has interfered with boundaries and ploughed the entire 2. 8 acres; that they have not intermeddled with the estate as alleged.

5. The application was canvassed by way of written submissions. The Petitioners duly complied while the Respondents opted to rely on their replying affidavit.

6. I have given due consideration to the rival affidavits and submissions presented. It is not in dispute that the petitioners and Respondents are family members of the deceased herein. It is also not in dispute that the deceased died intestate and hence it is this court which is tasked with the distribution of his estate to the beneficiaries. It is also not in dispute that a grant is yet to be issued to the Petitioners and which is yet to be confirmed. It is also not in dispute that an estate of a deceased person can only be dealt with in a accordance with the Law of Succession Act and Probate and Administration Rules. It is also not in dispute that the estate of a deceased can only be distributed through a confirmed grant issued to the administrator (s). Finally, it is not in dispute that the estate of the deceased herein is yet to be distributed in accordance with the law. That being the position, I find the only issue for determination is whether the application has merit.

7. As confirmed by the parties herein, the estate of the deceased is yet to be distributed in accordance with the law, there is need to point out to them that all beneficiaries are expected to wait for the court to prepare them in these proceedings and thereafter have the grant confirmed from where they will be at liberty to legally acquire their rightful shares under the estate. It is apparent that some of the beneficiaries have already purported to distribute the estate or engage with third parties over their shares. The law of Succession vide Section 45 forbids any person from intermeddling with the estate of a deceased person. The same provides as follows: -S.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 the 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 of ten thousand shillings or to imprisonment not exceeding one year or to both such fine and imprisonment; andb)be answerable to the rightful executor or administrator to the extent of the assets with which he has intermeddled after deducting any payments in the due course of administration.From the foregoing provision, it is now clear per adventure that what the beneficiaries have done is a violation of the law as far as the estate of the deceased herein is concerned. The Respondents have annexed a copy of minutes of an alleged clan meeting which took place on 15. 10. 2022 and which purported to distribute the estate of the deceased. The petitioners have rubbished the same and denied that such a meeting ever took place since none of the family members attended and further that their names and signatures are not on the document. I am inclined to agree with the petitioners’ sentiments that the alleged minutes must be forgeries. In any case, no other person or body has authority to distribute the estate of a deceased person who died intestate other than a court of law. The petitioners have done the right thing by moving to court so as to obtain a grant of letters of administration and thereafter have it confirmed and be able to proceed to a administer and distribute the estate of the deceased. As the matter has landed in court, the court must now proceed to issue directions and put the beneficiaries and other parties on notice that any intermeddling of the estate before confirmation of the grant will attract serious consequences.

8. As the Respondents have admitted selling a portion of the estate, I find that they are guilty of intermeddling in the estate. They have no capacity to pass any interest in land to the alleged purchaser since there is no confirmed grant. It seems they have been misled by the alleged clan deliberations to go against the law yet the clan has no powers to distribute property of the deceased herein as that is a preserve of the courts. The Respondents must now be called to heel and warned to stop intermeddling with the estate of the deceased forthwith. The Respondents must wait for the grant to be issued to the petitioners and that all the beneficiaries will participate during the confirmation of the grant. An order for the preservation of the assets is appropriate at this state so as to ensure that they are not dissipated and to ensure that they are available for distribution to the beneficiaries once the grant is confirmed.

9. In view of the foregoing observations, I find merit in the petitioners’ application dated 10. 7.2023. The same is allowed in terms of prayer No. 3. Each party to bear their own costs.

DATED AND DELIVERED AT BUNGOMA THIS 31ST DAY OF JANUARY 2024. D KEMEIJUDGEIn The Presnce Of:-No appearance Nyamu for Petitioners/ ApplicantsNo appearance Miss Arunga for RespondentsKizito Court Assistant