[2022] KEHC 15878 (KLR)

In re Estate of Kyale Mwendwa (Deceased) (Succession Cause E2167 of 2021) [2022] KEHC 15878 (KLR) (Family) (4 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15878 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause E2167 of 2021

MA Odero, J

November 4, 2022

IN THE MATTER OF THE ESTATE OF KYALE MWENDWA (DECEASED) WRITTEN SUBMISSIONS OF MUMO IKUI MWENDWA, VONZA KAVILA MWENDWA,NZAMBU MULAIMU MWENDWA, ACADEMIC SERVICES LTD,NZAMBANI ROCK DEVELOPMENT LTD, MUVOKANZA LTD AND NASELA & MUKAKKAIK LTD

Ruling

1. Before this court for determination is the summons dated March 24, 2022 by which the Objectors Mumo Ikui Mwendwa, Vonza Kavila Mwendwa, Nzambu Mulaimu Mwendwa, And Academic Services Ltd, seek for orders that:-“1. The following assets be expunged from the list of Assets of the estate as provided for in the Affidavit in support of petition for probate sworn by Sammy Muvelah dated October 27, 2021. No Asset Belongs To

a. LR No XXVI/84 is wrongly numbers as the correct reference for the property is Title No. Mombasa/Block XXVI/84 Academic Services Ltd

b. Motor vehicle KYE 995 Academic Services Ltd

c. Motor Vehicle KYA 272 Mumo Ikui Mwendwa

d. Title No Nairobi/Block/60/272 Mumo Ikui Mwendwa, Vonza Kavila Mwendwa and Nzambu Mulaimu Mwendwa

e. Title No Matinyani/Kalia/873 Mumo Ikui Mwendwa, Vonza Kavila Mwendwa, Nzambu Mulaimu Mwendwa and Prof Suki Kaloo Ktahuka Mwendwa

2. The costs of this application be in the cause.”

2. The application which was premised upon rule 73 of the Probate and Administration Rules 1980 was supported by the affidavit of even date sworn by the objectors.

3. The respondent Sammy Muvelah (in his capacity as administrator of the estate) opposed the application through his replying affidavit dated May 13, 2022. One of the beneficiaries of the estate Professor Suki Kaloo Mwendwa also filed a replying affidavit dated May 13, 2022 in opposition to the summons.

4. The matter was canvassed by way of written submissions. The objectors filed the written submissions dated July 15, 2022, the respondent filed submissions dated July 22, 2022 whilst the beneficiary relied upon her written submissions also dated July 22, 2022.

Background 5. This succession cause relates to the estate of the late Kyale Mwendwa (hereinafter ‘the Deceased’), who passed away at the Aga Khan Hospital in Nairobi on November 3, 2020. A copy of the death certificate serial number 1093345 is annexed to the petition for grant of probate dated October 27, 2021. Vide a letter dated September 17, 2021 written by the Chief of Kangemi Division, Kitisuru location the names of the survivors of the deceased were given as follows:-1. Jacinta Wangove Mwendwa – wife2. Susan Mwendwa – wife3. Mumo Mwendwa – son4. Vonza Kavita Mwendwa – son5. Suki Kaloo Mwendwa – daughter6. Nzambu Mulamu Mwendwa – son7. Munyoki Mbuvi Mwendwa – son8. Mukili Nyili – daughter

6. The deceased died testate having left a written will dated April 22, 2015. A copy of the will is also annexed to the petition for grant of probate.

7. In his written will the deceased appointed three (3) executors. One of the named executors Francis Kasina renounced all right and title to Probate and Execution of the will on October 27, 2021. Another executor Nzamba Kitonga passed away on October 24, 2020. The only remaining executor Sammy Muvelah applied for and obtained grant of probate on March 14, 2022. The objectors who are all sons of the deceased then filed this application seeking to have some of the assets listed in the written will expunged from the lists of assets available for distribution to the beneficiaries of the estate.

8. The objectors allege that some of the assets belong to a company named Academic Services Ltd in which the deceased was merely a shareholder. It is further alleged that other of the listed assets had already been transferred by the deceased prior to his demise. The objectors therefore pray that the assets listed in their summons be expunged from the list of assets presented by the executor.

9. The respondent/executor submits that the present application is premature as he has not yet filed a summons for confirmation of grant. The executor states that he requires more time in order to verify all the properties listed in the will. Moreover, the executor avers that some of the assets which the objectors seek to have expunged are correctly included in the inventory of assets. He urges the court to dismiss the application in its entirety.

Analysis and Determination 10. I have carefully considered the summons before this court, the replies filed thereto as well as the written submissions filed by the parties.

11. The respondents claim that the firm of Khaminwa & Khaminwa Advocates is not properly on record for the objectors as the said law firm filed notices of appointment instead of entry of appearance thereby contravening rules 60 and 63 of the Probate and Administration Rules.

12. In my view, this is a mere technicality which does not affect the substance of the matter at hand. Article 159(2)(d) of the Constitution of Kenya 2010 exhorts courts to administer justice “without undue regard to procedural technicalities”. It is clear that the law firm of Khaminwa & Khaminwa Advocates were instructed to represent the objectors in this matter. The fact that they used the wrong format in coming on record does not negate this intention. Accordingly, I do dismiss this objection and I find that the firm of Khaminwa & Khaminwa Advocates are properly on record for the objectors.

13. The question of which assets genuinely form part of the estate of the deceased cannot be determined by way of affidavit evidence. Upon receiving grant of probate, the executor has a duty to collect and call in the entire estate and must determine what assets are available for distribution in accordance with the written will.

14. Once this is done the executor will then file a summons for confirmation of grant detailing how the estate is to be distributed. I therefore concur with the submissions by the respondent that the present application is somewhat premature. The objectors ought to have waited for summons for confirmation of grant to be filed at which point being beneficiaries, they would be invited to signify whether they consent to the mode of distribution or not. It is at that point that the objectors would raise their objection to the inclusion of the assets which they claim.

15. I am fortified in the above finding by the decision my learned brother Hon Justice Musyoka In re Estate Of Gaitano Atsianzale Alias Atsianzale Shikomongoma (Deceased) [2021]eKLR in which it was held:-“The issues raised by the applicant relate to whether or not Isukha/Mugomari/1093 is an asset in the estate, and that is matter that should arise at confirmation of grant, as I have mentioned above. The applicant should wait patiently for the petitioner herein to mount an application for confirmation of his grant, should one be eventually made to him. Rule 40(6) of the Probate and Administration Rules envisages the filing of an objection, by way of an affidavit of protest, to confirmation of the grant. The application is, for all practical purposes, premature.” (own emphasis)

16. Similarly In Re Estate Of Edn (Deceased) [2019]eKLR the court stated as follows:-“Confirmation of the grant is the surest way to resolve all issues that the parties wish to place before the court. Section 71 of the Law of Succession Act, cap 160 Laws of Kenya, has set out the parameters of what the court may consider. It considers and identifies the correct survivors of the deceased, determines who should be allowed to administer the estate, identifies the assets and liabilities, and determines how the same ought to be distributed.” (own emphasis)

17. I therefore decline to grant the orders sought in the summons dated March 24, 2022. Instead, I direct that the executor establish the full extent of the estate and file within ninety (90) days a summons for confirmation of grant. The said summons to be served upon counsel for the objectors who will be at liberty to file an objection if they so wish. This being a family matter I make no orders on costs.

DATED IN NAIROBI THIS 4TH DAY OF NOVEMBER, 2022. …………………………………..MAUREEN A. ODEROJUDGE