[2025] KEHC 4194 (KLR)

In re Estate of Joseph Makori Omboga (Deceased) (Succession Cause E713 of 2023) [2025] KEHC 4194 (KLR) (Family) (3 April 2025) (Ruling)

Neutral citation: [2025] KEHC 4194 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause E713 of 2023

HK Chemitei, J

April 3, 2025

IN THE MATTER OF THE ESTATE OF JMO(DECEASED)

In the matter of

SNM

Respondent

Ruling

1. This ruling relates to the applications dated dated 14th March, 2024 and 3rd November, 2023 filed by Benedict Odhiambo Oloo.

2. The application dated 14th March, 2024 seeks for orders that:-1. Spent.2. Equity Bank (K) Ltd, Parliament Road Branch do produce Statement of Account for the account number 1770276XXXXXXX under the account name Makori Omboga & Company Advocates from the period between 1st January, 2023 to date and deduct charges of the said statements from the said account.3. The costs of this Application be in the cause.

3. The application is supported by affidavit and further affidavit sworn by Benedict Odhiambo Oloo on 14th March, 2024. He avers inter alia that he has been authorized to oversee the files of the late Makori Omboga & Co. Advocates, a law firm that had been engaged to handle a civil case on behalf of John Ongudi Odero, the Plaintiff, at the Mombasa Chief Magistrate’s Court under Case Number 826 of 2007 where judgment was issued in favor of the Plaintiff, awarding him Kshs.587,732. 20 plus costs. Consequently, a decree was extracted, bringing the total amount, including costs, to Kshs.747,393. 20.

4. This amount was served on the Judgment-Debtor and subsequently deposited into Makori Omboga & Co. Advocates’ client account at Equity Bank (K) Limited, Parliament Road Branch, Account Number 1770276XXXXXXX. Unfortunately, the advocate handling the matter passed away before transferring the decretal amount to the decree holder. The Petitioner then wrote to the bank requesting a statement of the said account to facilitate the court in releasing the funds to the decree holder’s estate.

5. The bank however declined and demanded court orders instead. On 29th January, 2024, the parties appeared in court, where the Petitioner applied for orders directing the bank to produce the relevant account statements. Since there were no objections, the court directed the parties to enter into a consent, which was to be adopted as a court order. However, the parties have failed to agree on the consent, and the matter is scheduled for mention on 19th March, 2024. It is therefore crucial that court orders be issued compelling the production of the account statements on that date. This will help determine whether the decretal amount was deposited, whether it remains in the account and the necessary court orders regarding its release. Additionally, since the decree holder has passed away, his wife, Naomi Jane Wauda, has obtained court orders allowing her to be enjoined in the case at the Mombasa Chief Magistrate’s Court under Succession Miscellaneous No. E189 of 2023.

6. The application dated 3rd November, 2023 petitions the Court for a Grant of Letters of Administration Ad Colligenda Bona of the estate of Joseph Makori Omboga who died domiciled in Nairobi on 14th March, 2023, limited for the purpose only for the management and operations of Makori Omboga & Company Advocates and access of the client’s account (Equity Bank (K) Ltd. Parliament Road Branch Account Number 1770276XXXXXX) and until further representation be granted.

7. The application is supported by affidavits in support of statement of account and further affidavit in support of statement of account all sworn by Benedict Odhiambo Oloo on 3rd November, 2023, 26th January, 2024 and 17th September, 2024 respectively. He avers inter alia that the deceased, whose estate is the subject of these proceedings, was known as Joseph Makori Omboga. The Petitioner, his closest friend and colleague, is named in the petition dated 31st October 2023, and has endorsed his name at the time of swearing the affidavit.

8. The deceased passed away on 14th March 2023 at Kenyatta National Teaching and Referral Hospital. At the time of his passing, he was domiciled in Nairobi, with his last residence being Ngumba Estate in Ruaraka. Before his demise, the deceased owned and managed the law firm of Makori Omboga & Co. Advocates, covering all office-related expenses, including salaries, rent and other operational costs.

9. His firm had obtained a decree in favor of a client in Mombasa CMCC 826 of 2007 and subsequently engaged auctioneers to enforce the unsettled decree. Kenindia Assurance Company Limited, acting on behalf of the judgment debtors, communicated with the firm regarding the settlement. On 2nd March 2023, Kenindia Assurance Company Limited transferred Kshs. 747,393. 20 to the firm’s client account at Equity Bank (K) Ltd., Parliament Road Branch Account No. 1770276XXXXXX.

10. The deceased underwent surgery in February 2023 and was bedridden until his passing on 14th March 2023. Following his death, outstanding office expenses, rent, and staff salaries have accumulated, including monthly office rent of Kshs.30,756/= with total arrears reaching Kshs.352,842. 40. Additionally, the firm's secretary, Faith Munyiva Kamolo, is owed Kshs. 30,000/= in salary from February 2023 to date.

11. The Petitioner is seeking a limited grant of administration ad colligenda bona on the grounds that he was the deceased’s closest friend and colleague. In his final days, he entrusted him with managing the law firm and supporting his family in handling the estate.

12. Further various advocates, including those handling cases alongside and against the firm, have sought clarification from the Law Society of Kenya regarding the continuation of pending legal matters. The Petitioner is unable to access the firm’s client account, as the deceased was the sole proprietor, preventing him from disbursing funds to clients. The firm faces potential closure due to unpaid rent, which could disrupt operations entirely. He believes that if granted the limited grant, he will effectively manage the firm as an interim nominee while overseeing its winding-up process.

13. Since the deceased’s passing, she has been solely handling the firm's affairs and is prepared to comply with any reasonable conditions or directions from the court to ensure proper administration, including managing the client account and reporting to the court during the transition period.

14. On 3rd November, 2024, this court issued an order stating that any collection or management of the deceased’s law firm must be done under the court’s authority. Following this order, he took over the firm’s files and operations, filing notices of change from Makori Omboga & Co. Advocates to her firm, Benedict Odhiambo Oloo & Co. Advocates, after consulting with the clients

15. The applications and affidavits above are opposed vide replying affidavit sworn by Stella Nkirote Mwambia on 21st November, 2024 who avers inter alia that she is the deceased’s legal wife, along with Jackline Achieng. The Applicant, having taken over 36 cases from the deceased’s firm, has not disclosed the funds earned or received from these cases. Without a thorough audit of the deceased’s firm, it is impossible to determine whether the provided list of cases is comprehensive. Such an audit can only be conducted when the company is being wound up and the deceased’s estate is administered according to the law.

16. Furthermore, the Applicant has not attached any invoice from Fairview Investments Limited to substantiate claims of rent arrears, instead expecting the court to take their word at face value without proper documentation. She is aware that the deceased’s firm remains at its original location and has not received any complaints from the landlord regarding rent arrears, nor has there been any distress action for rent. She believes that the matters the Applicant took over from the deceased’s firm should have been sufficient to settle any rent arrears, and therefore, the applicant should be required to account for those funds.

17. A full succession process would ensure transparency and proper management of the deceased’s estate, as the court is currently being asked to issue substantive orders based on incomplete or misleading information, which amounts to intermeddling. Given these circumstances, she and Jackline Achieng should be granted the opportunity to administer the deceased’s estate since they rank highest in the order of consanguinity.

18. Additionally, the employment contract of Faith Munyiva Kamolo contains significant irregularities that warrant cross-examination, such as how an employee earning Kshs.30,000/= in January 2005 could have their salary reduced to Kshs.20,000/= in January 2020. The applicant has also failed to provide a clear account of her salary, raising further concerns about the accuracy of the submitted documents. The court should order the Applicant to provide a detailed and transparent statement of all funds generated by their firm since taking over the deceased’s firm. It also remains unclear whether the decree holder has been paid, and the applicant should submit written confirmation from the decree holder regarding any outstanding payments.

19. Both parties have not filed written submissions on the applications above.

Analysis And Determination 20. I have looked at the applications above and the replies thereto and it is clear that all the parties in their own estimation have no proof or evidence of any accounts of the law firm since the deceased passed on.

21. Stella is of course coming in as a spouse together with Jackline Achieng as co-wives or directly related with the deceased. Benedict on the other hand is interested as a colleague and a longtime friend of his fellow advocate.

22. Whichever way, it is necessary that accounts or some audit of the firm be undertaken since the time he passed on. I do not see any contradictions as such since Benedict is coming on board to render his professional input and the other two as family members. Whichever the case there must be evidence of how the firm has been managed, what has been collected or dispersed since the period the deceased was unwell and after he passed on.

23. The said accounts will then help the court and the parties identify who are the creditors and debtors to the estate. Thereafter the court will proceed to make further determination. Without the accounts nothing much will be achieved.

24. I’m persuaded to take solace in Virginia Wangui Mathenge v Agnes Wairimu Njoroge & another [2013] eKLR it was held as follows:-“… 29. I will therefore allow the application in the following terms –i.An audit of the firm of Mathenge & Muchemi, Advocates at the time of his death shall be taken forthwith. Such audit must of necessity include a list of assets (including any accrued but not yet recovered fees for work already done). It must also include the debts of the firm (including monies owed to clients).ii.The audit shall be taken by an Accountant to be agreed by the parties or in the absence of such agreement to be appointed by the court.iii.The Audit Report shall be filed in court within thirty (30) days of the day the accountant is appointed.(iv)The audit fees shall be paid equally by the three parties, but the same shall be recovered from the estate of the Deceased.(v)Costs of the application shall be in the cause…”

25. In the premises I direct as hereunder:-(a)An audit be undertaken of the firm of Makori Omboga & Company Advocates within 30 days from the date herein.(b)The Applicants Benedict Odhiambo Oloo and Stella Nkirote Mwambia shall agree on a duly registered professional accountant and in default the Deputy Registrar of this court be at liberty to appoint one from the accountant’s body.(c)The costs of the said audit shall be borne by the estate.(d)Parties be at liberty to apply.(e)Costs in the cause.

DATED SIGNED AND DELIVERED AT NAIROBI VIA VIDEO LINK THIS 3 RD DAY OF APRIL, 2025. H K CHEMITEIJUDGE