[2022] KEHC 11826 (KLR)

In re Estate of Kitele Kitingu (Deceased) (Succession Cause 574 of 2005) [2022] KEHC 11826 (KLR) (12 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11826 (KLR)

Republic of Kenya

In the High Court at Machakos

Succession Cause 574 of 2005

MW Muigai, J

May 12, 2022

IN THE MATTER OF THE ESTATE OF THE LATE KITELE KITINGU (DECEASED)

Between

Josephat Mulli Kitele

Applicant

and

Jeremiah Muthoka Kitele

1st Respondent

Susan Mbuka Kimatu alias Susan Mbula Mweu

2nd Respondent

Ruling

1. The deceased Kitele Kitingu died on 8/10/1992.

2. The Petition for letters of administration was filed on October 17, 2005. The beneficiaries listed were;1. James Muasya Kitele2. Joseph Makau Kitele3. Patrick Nzuna Kitele4. Justus Mweu Kitele5. Jeremiah Muthoka Kitele6. Mac Peace Kyalo Kitele

3. The family of the deceased disclosed LR No 12XXX/153(2. 024) registered in both names of Kitele Kitingu (deceased) and James Kitaka Mutua.

4. The beneficiaries consented to Jeremiah Muthoka as Administrator. The grant was issued on13/2/2006 and confirmed grant was issued on 23/6/2006 distributing the estate of the deceased/the suit property LR No 12XXX/153(2. 024) by joint registration of the Jeremiah Muthoka -Administrator and James Kitaka Mutua.

5. Josphat Mulli Kitele filed Summons for Revocation of grant on 17/9/2020 seeking an injunction to restrain the Administrator Jeremiah Muthoka and Susan Mbula Kimatu widow of Justus Mweu late son of the deceased from dealing with the deceased’s immovable property and the Administrator to render full and accurate accounts for LR 12XXX/153 and Coffee farm Kangundo- Maseweni Kikambuani that was not disclosed as part of the estate of the deceased.

6. Josphat Mulli Kitele raised issues of material non-disclosure in filing of the Petition for grant of letters of administration as follows;a)The deceased was polygamous and had 3 wives/widows;Teresia Kitele 1st wife is the Applicant’s mother but all children from the 3 houses were not included or disclosed in the Petition or Succession Proceedings.b)Properties that comprised of the deceased’s estate were excluded; Kangundo/Kikambuani/1XXX; Kangundo/Kikambuani/1XXX.

7. The Trial Judge Hon DK Kemei heard the application and subsequent applications that raised similar issues and by Ruling of 18/5/2021, the Trial Court granted orders that are now the subject of enforcement and compliance herein below.

Summons Dated 15TH JULY 2021 8. The Objector filed Summons under Section 76, 45 and 83 of the Law of Succession Act, Rule 44 and 49 of the Probate and Administration Rules, Section 5 of the Judicature Act, Contempt of Court Act 1981 and part 81 of the Civil Procedure (Amendment number 2) Rules 2012 of England, Section 3A of the Civil Procedure Act and Order 40 Rule 3 of the Civil Procedure Rules 2010 seeking the following orders, That;a.Spent.b.The Respondents are ordered to give an account of proceeds forming part of the deceased’s estate being LR 12XXX/153 originally known as Plot 41 on LR 7147/11/R and the coffee farm proceeds of the land at Kangundo/Kikambuani and file in court within 14days from the date hereof.c.In default of compliance with order 2 above, the respondents Jeremiah Muthoka Kitele And Susan Mbuka Kimatu alias Susan Mbula Mweu be held in contempt and committed to civil jail for such term as the Honourable Court shall deem fair and just for disobeying the orders of this Honourable Court and the Petitioner, Jeremiah Muthoka Kitele be removed as the administrator to the estate and replaced by Josephat Mulli Kitele ,the objector hereind.Further in default of compliance with Order 2 above the Director Criminal Investigations be and is hereby ordered to conduct thorough investigations over the sale by the Petitioner Jeremiah Muthoka Kitele and his agents of the deceased property LR 12XXX/153 originally known as Plot 41 on LR 7147/11/R and upon conclusion of the said investigations to compile a comprehensive report including preferring criminal charges against any culpable party or parties and to table the same before the Honourable Court within sixty days from the date hereof.e.Costs of the application be in the cause.

9. The Application was supported by the Affidavit of the Objector deposed on 15th of July 2021 in which he stated that the ruling of the court delivered on 18th of May 2021 gave various directives including filing of fresh summons for confirmation of grant within forty five days and to serve it upon all beneficiaries and to render various accounts of the proceeds forming part of the deceased’s estate being LR 12XXX/153 originally known as Plot 41 on LR 7147/11/R within reasonable time which has not been done.

10. He contended no proper accounts of proceeds were given or filed together with the fresh summons for confirmation of grant that was served upon him through his Counsel on record. He opined that the petitioner had admitted to selling LR 12XXX/153 originally known as Plot 41 on LR 7147/11/R together with agents. He prayed for the order sought to enable him challenge the fresh summons for confirmation of grant.

Replying Affidavit 11. The 1st Respondent filed a replying affidavit dated October 4, 2021 in which he deposed that the Summons were frivolous, vexatious and in bad faith as he had already filed an application for confirmation of grant and he wrote to the Applicant’s advocates seeking their concurrence on taking a surveyor to the ground to capture the parcel sizes in order to file a detailed schedule of assets and distribution list.

12. The Applicant’s advocates wrote back indicating that they were not agreeable and he opined that he was compelled to file the application for confirmation without a detailed schedule. He deposed that he had prepared an account in respect of the parcel and coffee which he intends to file and asked the court to dismiss the application with costs to himself. Affidavit Of Account In Respect Of Parcel LR No 12XXX/153 Forming Part Of The Deceased’s Estate And Proceeds Of Coffee Sales Pursuant To Court Order Dated May 18, 2021

13. The 1st Respondent/ administrator filed this affidavit on 25th of October 2021 in which he stated that LR 12XXX/153 was jointly owned by his father and one James Mutua Kitaka. He deposed that vide a letter, their eldest brother James in February 2005 wrote to the eldest brother in his mother’s household asking them to divide the land equally between Kitaka and themselves and then further divide their portion equally between the households and since this could not be done without the consent of the Commissioner of lands, they agreed to sell the parcel and share the proceeds. He further contended that the agreement was made orally but formalized into an agreement when Matheka filed a court case in 2013.

14. He deposed that they sold the parcel for 4. 5 million and Kshs 500,000 was for broker’s fees, rates and other outstanding levies payable to the municipal council and eventually Kshs 2,000,000 paid to them.

15. He contended that he gave Kshs 1,000,000 to James which he expected him to share with his brothers and the balance was shared equally with his two brothers. He further contended that he learnt that the sale was procedurally wrong as he did not have a confirmed grant however he did it in good faith and should not be blamed for a collective family decision. He opined that all beneficiaries were aware of the sale and received their proceeds and only the Objector claims otherwise.

16. With regards to the coffee proceeds, he contended that their father divided the farm amongst his sons with each of them farming their portion and remitting to the co-operative and there was no collective farming requiring accountability. Therefore he opined that he administered the estate in good faith and had not done anything contrary to the best interest of the estate.

Supplementary Submissions 17. The Objector filed supplementary submissions deposed on December 15, 2021 in which he stated that the Petitioner ought to have rendered the true and accurate accounts within Twenty one days from the date of the ruling this suit having been filed in 2005. He contended that in 2005 all the children of Kitele were adults and James M Kitele did not have authority to represent them and thus they did not approve the sale of the land.

18. Further that the Petitioner was not an administrator of the estate as the grant of letters of administration were issued on February 13, 2006. He averred that the sale was illegal and the letter was forged as the handwriting was not his late brother James’ handwriting which should be investigated. He also questioned why the later was not copied to James Kithaka.

19. He alleged that from the letter of Allotment by Syokimau Farm Limited, the land was solely owned by the deceased and the name James Kitaka Mutua was a late entry, typed in a different font, on a different line and is only signed by the deceased. He opined that the letter was a forgery. Further that since the Syokimau Farm Limited regulations did not allow for subdivision below 5 acres which was his father’s share, then the Petitioner should be put to account and produce the agreement between himself and James Kitaka Mutua.

20. The consent of brothers was also a fraud as it was dated July 4, 2013 after the sale that was done in 2006 and he is informed by his brother Mac’ Piece Kyalo Kitele that he does not remember signing the consent and his signature is forged, he questioned why he and the daughters did not give consent. He further stated that the deceased had 10 sons from 3 wives, 6 from the first wife, three from the second and one from the third and the proceeds should have been divided amongst them and not James Kitaka whom he terms a stranger.

21. He averred that the sale agreement dated 8th of March 2006 had not been registered or franked at the Lands office, doesn’t not show the Petitioner is selling in his capacity as the administrator of the estate but as a co-owner together with James Kitaka, does not show any consensus of all beneficiaries, does not show James Kitaka as the co-owner expressly, does not show how the purchase price was to be shared, there is no evidence of the purchase price and that the sale was done 3months before the grant was confirmed and the certificate of urgency was only filed to sanitize the illegal process.

22. He inquired as to who received the share given to his mother’s household as Francis John Kitele was already deceased then.

23. He opined that the Kangundo/Kikambuani land was to be divided into two according to the late father’s instructions, one for Theresia Mbovi and Anna Kitele and their children as 1. 30HA and 1. 10 Ha respectively. He alleged that the Respondents have grabbed Theresia Mbovi’s land.

24. He alleged that Anna Kitele’s son, Patrick Nzuna Kitele has encroached on Theresia Mbovi’s land under the disguise that he bought it from Joseph M Kitele who has no authority to sell the land.

25. He further alleged that James Kitaka Mutua had also encroached on Theresia’s land claiming they bought it from James Mutune Mulili who did not have a title under his name.

26. He deposed that he had placed cautions on Kangundo/Kikambuani 1XXX and 1XXX on 20th of April 1988 and on May 20, 2020, the Petitioner, Patrick Nzuna and Joseph Kitele subdivided Kangundo/Kikambuani 1XXX without the consent of all stakeholders and planted sisal as boundary marks and the James Kithaka Mutua and Patrick Nzuna should vacate the land.

27. He opined that the titles deeds to this land which are supported by his father’s directive signed by his sons, his brother Musau and his nephew Gregory Musa and Mutua should be produced by the Petitioner.

28. He contended that letter from Muisuni Farmers Limited bears shareholding before the father shared the parcel and his share has been inactive since 1989. Further, that the Petitioner should produce the sale activity of the claims to support what he calls a doctored document of Muisuni Co-operative society.

29. He stated that by virtue of the illegal sale, the Petitioner should not be an administrator as he is in contempt.

Objector’s Written Submissions 30. The Objector filed submissions on 1st of February 2022 and while reiterating the contents of his affidavits, relied on Section 79 of theSuccession Actand the case ofRe estate of Daniel Muiruri Gatuati (Deceased) (2017) eKLR andRe estate of Teresia Wanjiru Thuo (Deceased)(2016) eKLR on the duties of the administrator and the issue of rendering of accounts being one of his duties submitted that the affidavit of Accounts was not the full and accurate accounts of the proceeds forming part of the estate. He submitted that the proceeds can only be protected by granting of the orders sought.

31. The Administrator waived the right to file and serve written submissions and relied on pleadings on record.

Determination 32. I have considered the Summons, the affidavits that have been filed and the Applicant’s submissions and find that the issue for determination is whether the 1st Respondent has complied with the orders dated 18th of May 2021 and whether the Applicant is entitled to the orders sought.

33. This Court on 18th of May 2021 vide Ruling by Hon DK Kemei J granted the following orders;1. The Certificate of confirmation of grant issued to the 1st Respondent on June 23, 2006 is hereby set aside.2. The Petitioner is ordered to file a fresh summons for confirmation of grant within forty-five (45) days from the date hereof and serve it upon all the beneficiaries.3. An order of status quo is hereby issued regarding the 2nd Respondent’s occupation of LR Kangundo/Kikambuani/1XXX pending the filing and determination of fresh summons for confirmation of grant.4. An order of temporary injunction is hereby issued against the respondents, their servants, agents or any person under their authority restraining them from intermeddling or dealing in any manner with the assets of the deceased pending the determination of the fresh summons for confirmation of grant save for Kangundo/Kikambuani/1XXX where order (iii) applies.5. The Respondents are ordered to give an account of proceeds forming part of the deceased’s estate being LR 12XXX/153 originally known as Plot 41 on LR 7147/11/R and the coffee farm proceeds of the land at Kangundo/Kikambuani.6. As parties are family members, there will be no order as to costs.

34. Order (i) is spent. With regard to Order (ii), from the record, no summons for confirmation of grant have been filed to date. The 1st Respondent indicates and has provided communication between the advocates on record on pending issues of the appointment of a surveyor.

35. The Applicant has not denied being in receipt of the letter asking him give a proposal on how the matter should be handled. The parties should put their house in order and comply with the order of the Court as soon as possible.Order (iii) and (iv) are still in force.

Account Of Proceeds Forming Part Of Deceased’s Estate 36. The Applicant took issue particularly with order (v) which he says has not been fully complied with as the Affidavit of Account in respect of parcel LR No 12XXX/153 filed on October 25, 2021 does not reflect the position of the accounts and the content of the Affidavit are not sufficient. The Respondent has buttressed this by indicating in his Report that he filed an affidavit of account in respect of parcel LR No 12XXX/153 forming part of the deceased’s estate and proceeds of coffee sales pursuant to court order dated May 18, 2021 and is thus in compliance of the orders.

37. The Applicant deposed that the Respondent failed to fully and satisfactorily to comply with the Court order of 18/5/2021. He proposed that Jeremiah Muthoka ought to be removed as Administrator of the estate of the deceased and matter referred to the Directorate of Criminal Investigations for thorough and comprehensive criminal investigations over the matter.

38. The Applicant reiterated the following issues related to non -disclosure of the sale of property LR 12XXX/153 deemed part of the estate without knowledge and consents of beneficiaries and proceeds of coffee farm proceeds.

39. Section 94 of the Law of Succession Act provides as follows:When a personal representative neglects to get in any asset forming part of the estate in respect of which representation has been granted to him, or misapplies any such asset, or subjects it to loss or damage, he shall, whether or not also guilty of an offence on that account, be liable to make good any loss or damage so occasioned.

40. Section 83 of the Law of Succession Act provides as hereunder:Personal representatives shall have the following duties—to provide and pay out of the estate of the deceased, the expenses of a reasonable funeral for him;a.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;b.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);c.to ascertain and pay, out of the estate of the deceased, all his debts;d.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;e.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;f.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;g.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;h.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.

41. In re Estate of Julius Mimano (Deceased)[2019] eKLR Justice Musyoka analyzed the unique position in law held by the personal representative of a deceased person and their duties by stating as follows:“…personal representatives administer estates on the strength of legal instruments made to them by the probate court. The vesting of the estate of the deceased on the personal representatives by virtue of section 79 of the Act, flows from the instrumentality of the grant of representation. Upon representation being made, the grant holder then becomes entitled to exercise the statutory powers conferred upon personal representatives by section 82 of the Act and incurs the duties imposed on them by section 83 of the Act. Additional powers flow from and duties are imposed by other statutes, such as the Trustee Act. Under section 82 of the Act, there are powers to enforce and defend causes of action on behalf of the estate, to sell or convert estate assets, to assent to vesting of bequests and legacies on the beneficiaries, among others. Acts done or actions taken on behalf of the estate or for the benefit of the estate would have to be accounted for. In other words, the personal representatives are bound to account for every action they take on behalf of the estate, for they exercise the powers on delegation.……………….“Although the personal representative has legal title akin to that of an owner, the property does not belong to them. They only hold it in trust for the eventual beneficiaries thereof, that is those named in the will, in cases of testate succession, and those identified at confirmation of grant, in cases of intestacy. They would also be holding it for the benefit of creditors and any other persons who might have a valid claim against the estate. That would mean that they are trustees of the estate, and, indeed, the Trustee Act, Cap 167, Laws of Kenya, defines trustees to include executors and administrators. In the circumstances, therefore, the personal representative would stand in a fiduciary position so far as the property is concerned, and owes a duty to the beneficiaries to render an account to them of their handling of the property that they hold in trust for them. The duty to render accounts to beneficiaries arises from the trust created over estate property when the same vests in the personal representative to hold on behalf of the beneficiaries.”

42. The objector raises serious allegations of fraud and for the Court to arrive at a conclusive decision, it will have to listen to the parties and not rely on affidavit evidence only. Am persuaded by the finding of Hon GV Odunga J In re Estate of Reuben Mutuku Kiva (Deceased) [2021] eKLR where he stated that;“Accordingly, for this Court to find that the said order was improperly obtained, the Applicant would have to apply for it to be set aside. This Court cannot simply ignore it. Secondly, if the applicant contends that she never signed the documents in question, the signatures that purport to be hers would have to be scrutinized and a decision made thereon. Such a determination cannot be made based on cold-print affidavits. It may, in fact, require the taking of viva voce evidence.”

43. The issue of fraudulent transfer has been raised in this court and reference is made to Re Estate of Alice Mumbua Mutua (Deceased) [2017] eKLR where the court observed as follows:“…..The Law of Succession Act, and the Rules made thereunder, are designed in such a way that they confer jurisdiction to the probate court with respect to determining the assets of the deceased, the survivors of the deceased and the persons with beneficial interest, and finally distribution of the assets amongst the survivors and the persons beneficially interested. The function of the probate court in the circumstances would be to facilitate collection and preservation of the estate, identification of survivors and beneficiaries, and distribution of the assets.Disputes of course do arise in the process. The provisions of the Law of Succession Act and the Probate and Administration Rules are tailored for resolution of disputes between the personal representatives of the deceased and the survivors, beneficiaries and dependants. However, claims by and against third parties, meaning persons who a neither survivors of the deceased nor beneficiaries, are for resolution outside of the framework set out in the Law of Succession Act and the Probate and Administration Rules. Such have to be resolved through the structures created by the Civil Procedure Act and Rules, which have elaborate rules on suits by and against executors and administrators.The Probate and Administration Rules recognize that, and that should explain the provision in Rule 41(3), which provides as follows –‘Where a question arises as to the identity, share or estate of any person claiming to be beneficially interested in, or of any condition or qualification attaching to, such share or estate which cannot at that stage be conveniently determined, the court may prior to confirming the grant, but subject to the provisions of section 82 of the Act, by order appropriate and set aside the particular share or estate or property comprising it to abide the determination of the question in proceedings under … the Civil Procedure Rules …’

44. The Administrator/Respondent confirms sale of land LR No 12XXX/153 in consultation with his brother Patrick Nzuna in 2005-2006 for Ksh 4. 5 million that comprised of the deceased’s estate the Sale is confirmed the annexed Sale Agreement annexed marked JK to the Affidavit of Accounts. Of the purchase price, Ksh 500,000/- was paid to brokers, Ksh 2,000,000/- was released to Co-owner of the land James Kitaka Mutua. The balance of Ksh 2,000,000/-, the Administrator gave Ksh 1,000,000/- to Protestor’s elder brother, James Muasya Kitele to share with his siblings and the balance Ksh 1,000,000/- the Administrator shared with his siblings.

45. With regard to the Coffee Farm in Kangundo/Kikambuani, the Administrator stated that their father, the deceased had long before his death divided the entire farm amongst his sons and each was farming his own portion and annexed the letter from Muisuni Cooperative Society annexed and marked JK5 that confirmed what each of the sons was allotted as individual farmers.

46. This Court makes reference to Sections 82 & 83 ofLSA on the powers and duties of personal representative of the deceased’s estate.Jeremiah Muthoka appointed by the beneficiaries and obtained a grant, the sole Administrator failed to comply with the mandatory and statutory obligations of a personal representative in handling the deceased’s estate.

47. The Administrator knowingly failed to disclose ALL surviving spouses and children of the deceased more particularly Josephat Mulli Kitele in filing the petition contrary to Section 51 of LSA.

48. The Administrator failed to disclose all assets that comprised of the estate of the deceased while filing the petition and/or thereafter during Succession proceedings until the Summons for Revocation was filed and the Applicant therein included undisclosed properties Kangundo/Kikambuani/1XXX; Kangundo Kikambuani/1XXX and the material non-disclosure and inclusion of these assets was contrary to duties of Administrators prescribed by Section 83 (b) (e) (f) & (g) of LSA. The Administrator failed to gather and collect all free property of the deceased, to produce a full and accurate inventory of the assets and liabilities of the estate of the deceased and accurate account of all dealings and to complete the administration of the estate and provide a full and accurate account of completed administration.

49. Section 82 (b) (ii) of LSA provides that the Administrator should not sell any immovable property of the deceased’s estate without confirmation of grant.

50. The sale of the suit property was in 2005-2006 based on an oral Agreement but an Agreement was drawn later when a dispute arose in 2013. It is not clear whether at the time of the sale the grant was confirmed or not.

51. Be that as it may , this Court is concerned that the sole Administrator appointed with consents of the selected beneficiaries, to administer the deceased’s estate and safeguard each beneficiary’s beneficial interest, by design he omitted some of his siblings and some of the properties of the deceased’s estate and upon obtaining the grant and/or confirmed he deviated from his statutory duty as personal representative of deceased’s estate and veered off to sell the only disclosed property of the deceased LR 12XXX/153 originally known as Plot 41 on LR 7147/11/R without knowledge consultation and /or consents of the beneficiaries.

52. There is no tangible and/or cogent evidence to confirm that James Muasya Kitele wrote any letter to signify sale of the property that Patrick Nzuna was involved, aware of the sale and he consented and that James Muasya Kitele agreed to the sale and received the part of the alleged purchase price of their property or not .All these claims are unsubstantiated by the evidence on record.

53. Section 79 & 80 ofLSA, upon the demise of the deceased, vests the property of the deceased in an intestate estate in the personal representative the Administrator(s) when the grant is issued by the Court. Thereafter, the Administrator legally carries out duties and exercises powers stipulated by Section 82 & 83 of LSA. The Administrator(s) is/are in a fiduciary position and owe a fiduciary duty to the beneficiaries of the estate of the deceased. The property that vests on the Administrator upon issuance of a grant in an intestate estate is held in trust for the beneficiaries of the estate.

54. The sole Administrator herein breached fiduciary duty, by material non-disclosure of the sale of the only disclosed asset that comprised of the estate of the deceased and thereby deprived the beneficiaries of the estate of their beneficial interest to the deceased’s estate.

55. The Affidavit of Account in respect of LR 12XXX/153 originally known as Plot 41 on LR 7147/11/R is not sufficient and does not meet the standards provided by Section 83 of LSA which should be full and accurate inventory and accounts to the satisfaction of this Court and beneficiaries.

56. The chronology of events outlined above strongly suggests breach of fiduciary duty based on material non- disclosure of All beneficiaries and all properties and more-so the irregular and unlawful sale of the suit-property. Therefore, it is not legally feasible to retain Jeremiah Muthoka Kitele as Administrator of the estate of the deceased. This Court recommends appointment of new Administrators as provided by Section 66 of LSA to take over and complete administration of the estate.

57. The Applicant also sought contempt of Court orders against the Administrator for non- compliance of Court orders. The Applicant sought that in default of compliance of the Court orders of 18/5/2021 the Respondents be held in contempt and committed to civil jail for such term as the Court shall deem fair and just for disobeying the orders of this Court.

58. This Court will not venture into this request for contempt of Court order to be granted as the Ruling of Hon DK Kemei J of 18/5/2021 after extensively dealing the same issue at paragraph 41 of the Ruling found that the Court was in doubt that the conduct complained of had been proved beyond reasonable doubt to amount to contempt.

59. This Court noted that the Administrator deposed that the distribution of the excluded suit properties Kangundo/Kikambuani/1XXX; Kangundo Kikambuani/1XXX were distributed by the deceased during his lifetime to his sons as such each son is an individual farmer of the coffee farm. This Court finds the explanation for non-disclosure of the properties illegal irregular and unlawful. If as the law provides, the deceased’s estate vests in the Administrator upon issuance of the grant, these properties unless transfers were done during the deceased’s lifetime and each son had a title document of the allocated portion then it would be excluded. But in this case, if it was in the deceased’s name it was part of the deceased’s estate, available for distribution.

60. Secondly, if there was a valid Will as alleged, then the Petition filed ought to have been for grant of Probate and the Will annexed. The Petition was/is for letters of administration from instant estate and grant was issued and therefore Sections 71, 79, 80, 82 & 83 LSA are applicable in administration and distribution of the deceased’s estate.

DispositionThe Court finds as follows;1. The Applicant’s Application of 15/7 /2021 filed on 21/2/2021 has merit and is upheld;2. The Respondent/Administrator Jeremiah Muthoka Kitele failed to comply with the Court order of 18/5/2021 to provide accounts of the deceased’s estate in that the Affidavit of Accounts does not meet the requirements of Section 83 LSA.3. The Administrator failed to include ALL beneficiaries and assets that comprise of the deceased’s estate, conducted unlawful sale of LR 12XXX/153 originally known as Plot 41 on LR 7147/11/R and deprived beneficiaries of their beneficial interest. The grant was revoked under Section 76LSA vide Ruling of 18/5/2021. 4.A new grant shall be issued upon appointment of new Administrators under Section 66 LSA, including the Applicant Josphat Mulli Kitele to represent 1st House and 1 representative from 2nd & 3rd House excluding Jeremiah Muthoka Kitele with 45 days of Ruling.5. All surviving spouses and children of the deceased shall be included as beneficiaries of the estate.6. Kangundo/Kikambuani/1XXX; Kangundo/Kikambuani/1XXX shall be included in administration of the estate of the deceased.7. The Joint registration questioned of the sold LR 12XXX/153 originally known as Plot 41 on LR 7147/11/R can only be dealt with by ELC Court.8. During distribution, those found to have benefited from the sale of LR 12XXX/153 originally known as Plot 41 on LR 7147/11/R their benefit shall be considered and taken into account in the distribution of Kangundo/Kikambuani/1XXX; Kangundo/Kikambuani/1XXX.9. Each Party to bear own Costs.

DELIVERED SIGNED & DATED IN OPEN COURT IN MACHAKOS ON 12/5/2022 (VIRTUAL CONFERENCE).M.W. MUIGAIJUDGE