[2022] KEHC 12549 (KLR)

In re Estate of Late Moses Gachuhi Macharia (Deceased) (Succession Cause 3520 of 2003) [2022] KEHC 12549 (KLR) (Family) (15 July 2022) (Ruling)

Neutral citation: [2022] KEHC 12549 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 3520 of 2003

MA Odero, J

July 15, 2022

IN THE MATTER OF THE ESTATE OF LATE MOSES GACHUHI MACHARIA (DECEASED)

Between

Victoria Wanjiku Macharia

Applicant

and

Hannah Muthoni Gachuhi

1st Respondent

Monica Wangari Gachuhi

2nd Respondent

Ruling

1. Before this Court for determination is the summons dated 19th March 2021 by which the Applicant Victoria Wanjiku Macharia seeks the following orders:-“1. Spent.2. That pending the hearing and determination of the summons herein the Administrators/Respondents be compelled to jointly and severally account for the status of the estate of the deceased (both testate and intestate) and file a comprehensive report with respect to following properties/assets belonging to the deceased from 2nd November 2000 to date.Properties mentioned in the will dated 30th August 1999. a.Plot 104, 2. 37 Ha (known in the Will as Plot 160)b.Malewa Plot 816 and 817 (known in the Will as Plot 871)c.Ol Kalau Resiriko 518d.Ol Kalau Resiriko 2060e.Ngenia Farms Molo No. 264f.Plot No. 1 Kamwaura centre, Commercial Plot Molog.Plot L.W 8 Gilgilh.L.R. No. 36/10/203 Eastleigh Section 1i.Kasuku shopping centre commercial Plotj.M/V No. KYU 504 pickupk.Barclays Bank account NyahururuProperties not mentioned in the Willa.Nyahururu/Lesirko/2750-56 Commercial Plotb.Kahiga Trading Centre Commercial Plot Malewa3. That Subsequent to prayer (2) above the Administrators/Respondents be ordered to jointly and severally file a comprehensive report on all proceeds/monies received from the properties and the investments made thereon.4. That upon hearing and determination of this application the Honourable court directs that the intestate estate of the deceased be shared equally among all the beneficiaries with the exception of those that have wasted and intermeddled with the same.5. That beneficiaries who have unilaterally allocated themselves properties of the estate be ordered to return the same and if sold to provide the proceeds of the same.6. That the cost of this application be in the cause.”

3. The application which premised upon sections 26, 45, 82, 83 and 95 of the Law of Succession Act Cap 160, Rules 49, 73 and 63 of the Probate and Administration Rules, and Rule 9 of the Advocates Practice Rules was supported by the Affidavit of even date as well as the Further Affidavit dated 6th April 2022 both sworn by the Applicant.

4. The Respondents Hannah Muthoni Gichuhiand Monica Wangari Gichuhiboth of who are Executors of the estate of the Deceased, opposed the application through their Replying Affidavit dated 20th April 2021. The application was canvassed by way of written submissions. The Applicant filed the written submissions dated 7th April 2022 whilst the Respondents relied upon their written submissions dated 6th May 2022.

Background 5. This Succession Cause relates to the estate of Moses Gachuhi Macharia(hereinafter the ‘Deceased’) who died testate on 2nd November 2011 having left a written Will (written in Gikuyu language) dated 30th August 1991. The Applicant is one of the children of the Deceased and a beneficiary to his estate. The two Respondents who are the widows of the Deceased are the Executors of his Will by virtue of the Grant of Probate made to them on 3rd June 2019 which Grant is yet to be confirmed. Summons for confirmation of Grant dated 16th July 2020 is pending.

6. The Applicant avers that the deceased died partially testate and partially intestate. She alleges that some of the properties left behind by the Deceased have not been mentioned in the written Will. The Applicant states that it would be convenient just and fair and would be to the advantage to all the beneficiaries to have all the assets of the Deceased included in the confirmed Grant so that they may be distributed at the same time.

7. The Applicant further alleges that there has been intermeddling into the estate of the Deceased. That some of the beneficiaries have unilaterally allocated to themselves properties belonging to the estate. The Applicant further seeks orders directing the Respondents as Executors of the estate to file a comprehensive report on all the proceeds received from estate properties as well as any proceeds from investments.

8. Finally, the Applicant prays that the estate be shared out equally among all the beneficiaries except for those who have wasted and/or intermeddled with the estate. That all beneficiaries be directed to restore to the estate any properties they have taken and that if any assets have been sold then the proceeds should be refunded to the estate.

9. The Respondents oppose the application. The Respondents confirm that they are the Executors of the written will left by the Deceased. They assert that in his Will the Deceased distributed his estate according to the properties which were owned by each of his three families prior to his demise.

10. That the first house of Hannah Muthoni Gachuhi has their home and property located at Gilgil Nyandarua and Nairobi, the 2nd House of Monica Wangari Gachuhi has property located at Ol Joro-Orok in Nyandarua County and in Nairobi, whilst the third House being the children of the divorced wife have properties located at Molo Ngenia Farm and Tinet Lodge Kamwaura Trading Centre in Molo, in Nakuru County. That each House has managed its own assets and thus it will be difficult for the Executors to prepare a comprehensive account of the entire estate. The Respondents state that the three Houses have co-existed peacefully and there has never been any dispute between them regarding the properties distributed to each house under the written Will.

11. The Respondents further aver that the allegation by the Applicant that certain other properties of the Deceased have been left out of the Will is unsubstantiated. They also deny that any of the beneficiaries has intermeddled with the estate at all.

12. In her Further Affidavit the Applicant insists that the Deceased managed his properties himself up to the time of his demise. She insists that the Respondent being the Executors of the written Will left by the Deceased have an obligation as well as a responsibility to render accounts of the estate of the other beneficiaries.

Analysis and Determination 13. I have carefully considered the application before me, the Affidavit filed in Reply as well as the written submissions filed by both parties. The issues which arise for determination are as follows:-(i)Whether there has been intermeddling into the estate of the Deceased.(ii)Whether the Executors ought to be directed to render account in respect of the estate of the Deceased.

i. Intermeddling 14. The Applicant has alleged that some of the beneficiaries have intermeddled and/or wasted the estate of the Deceased making it difficult to establish the extent of the said estate.

15. On their part the Executors deny that there has been any intermeddling with the estate by any of the beneficiaries.

16. Section 45 of the Law of Succession Act, Cap 160, Laws of Kenya provides as follows: -“(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.”

17. Therefore under the above provision no person except one holding a legal Grant of Representation of an Estate may take possession of dispose, transfer or in any other way intermeddle with the estate of Deceased person. Section 45(2)(a) makes intermeddling a criminal offence.

18. In the case of Veronica Njoki Wakagoto(Deceased) [2013] eKLR the court held as follows: -“The effect of [section 45] is that the property of a dead person cannot be lawfully dealt with by anybody unless such person is authorized to do so by the law. Such authority emanates from a grant of representation, and any person who handles estate property without authority is guilty of intermeddling. The law takes a very serious view of intermeddling and makes it a criminal offence.”

19. Likewise in ReEstate of M’Ngarithi M’Miriti [2017] eKLR the Court was of the position that: -“Whereas there is no specific definition provided by the Act for the term intermeddling, it refers to any act or acts which are done by a person in relation to the free property of the deceased without the authority of any law or grant of representation to do so. The category of the offensive acts is not heretically closed but would certainly include taking possession, or occupation of, disposing of, exchanging, receiving, paying out, distributing, donating, charging or mortgaging, leasing out, interfering with lawful liens or charge or mortgage of the free property of the deceased in contravention of the Law of Succession Act. I should add that any act or acts which will dissipate or diminish or put at risk the free property of the deceased are also acts of intermeddling in law. I reckon that intermeddling with the free property of the deceased is a very serious criminal charge for which the person intermeddling may be convicted and sentenced to imprisonment or fine or both under section 45 of the Law of Succession Act. That is why the law has taken a very firm stance on intermeddling and has clothed the court with wide powers to deal with cases of intermeddling and may issue any appropriate order(s) of protection of the estate against any person.” (own emphasis)

20. In support of her claim that there has been intermeddling, the Applicant has claimed that some of the properties of the estate have been registered in the name of third parties. In Paragraph 87 of her Further Affidavit, the Applicant cites as an example Plot No. 160 mentioned in the Will of the Deceased which she claims has been interfered with and is now known as Nyandarua/Kipipiri Lereshwa Block 1 (Malava Ranch) 816 and Nyandarua Kipipiri Lereshwa Block 1 (Malava Ranch) 817. However, in paragraph (8) of the same Further Affidavit the Applicant concedes that the 1st Respondent has filed a suit in the Environment and Land Court being Nyandarua ELC No. 6 of 2021 against the persons who unlawfully acquired this Plot 160. Given that it is the duty of an Executor/Administrator to protect the estate of a Deceased, I find that the 1st Respondent was acting in fulfilment of said duty in filing suit to recover the asserts belonging to the estate of the Deceased.

21. In any event, it is my view that the question of (who if any) of the beneficiaries have intermeddled in the estate of the Deceased cannot be determined on the basis of Affidavit evidence. This is a matter that can only be determined at a full hearing at which all parties will be at liberty to call evidence.

22. Suffice to say I am of the view that the estate of the Deceased ought to be preserved pending determination of this Succession Cause.

(ii) Whether Accounts should be rendered. 23. The Applicant has prayed for orders that three Executors of the Estate be directed to render full and accurate accounts in respect of the estate of the Deceased. The Executors in their Reply state that each of the three Houses of the Deceased have managed their share of the estate individually and thus it would be difficult for them to prepare and present consolidated accounts in respect of the entire estate.

24. Section 83 (e) and (g) of the Law of Succession Act which sets out the duties of Personal Representatives provides as follows: -“Personal Representatives shall have the following duties –a.........................b..........................c..........................d............................e.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;f...............................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.”

25. Executors/Administrators of an estate hold the estate property as trustees. They have a duty to account to the beneficiaries and to the court regarding their management of the estate. So seriously is this obligation that Section 79 (d) (iii) of the Act provides that one of the grounds upon which a Grant may be revoked is the failure/omission of a personal Representative to avail to the court Accounts and an inventory of the estate.

26. Case law on the above issue abounds. In ReEstate of Julius Mimano (Deceased) [2019]eKLR Hon Justice William Musyoka stated as follows: -“Section 83 of the Act imposes duties on personal representatives to pay for the expense of the disposal of the remains of the deceased, to get in or gather or collect the assets of the estate, to pay for the expenses of the administration of the estate, to ascertain and pay out all debts and liabilities, and eventually to distribute the assets amongst the persons beneficially entitled. The discharge of these duties would naturally attract an account, in terms of the personal representative stating whether they discharged the said duties and disclosing the expenses that they incurred in the process of discharge. In addition, section 83 of the Act has imposed a positive duty on personal representatives to specifically render accounts at two stages. The first instance is in the first six months of the administration. It is at this stage that they ought to account as to whether the spent any funds from the estate for the purpose of disposing the remains of the deceased and, if so, how much. State whether they got in or gathered or collected or brought together all the assets that make up the estate. The getting in of the estate is critical, it should precede settlement of debts and liabilities and distribution of the assets. Indeed, these duties can only be discharged if there are assets sufficient to settle debts leaving a surplus for distribution. It would also be from the assets collected that the estate would have a pool of resources for administration expenses. Section 83(e)commands the personal representatives to produce in court a full and accurate inventory of the assets and liabilities, no doubt generated from the exercise of getting in the assets and ascertaining the debts of the estate. There is also an obligation to render an account of all their dealings with the assets and liabilities up to the point of the account. The second occasion for rendering accounts is at the completion of administration. The duty is stated in section 83(g) of the Act. The object of the second and final account is to give opportunity to the personal representative to demonstrate that they have complied with the duty in section 83(f) of distribution of the estate to the beneficiaries. The duty to account on those two occasions is imposed by statute. It envisages an account to the court, not even to the beneficiaries. The powers exercised by the personal representative’s flow from a court instrument, the court is entitled to know whether those powers have been properly exercised, and whether the duties imposed have been properly discharged. Being a statutory duty to account to the court, the personal representative does not have to wait for a court order directing them to render account, they must render the accounts as a matter of course. The matter of the duty to render accounts is so critical that default to do so is listed in section 76(d)(iii) of the Act as one of the grounds upon which the court may consider revoking a grant. (own emphasis)

27. Further inRe Estate of David Kyuli Kaindi (Deceased) [2015] eKLR Musyoka, J had this to say on the obligation of personal representatives to render account:“The obligation to account is tied up with the fact that personal representatives are also trustees. They are defined as such in the Trustee Act, Cap, 167, Laws of Kenya, at Section 2. This is so as property belonging to other vests in them in their capacity as personal representatives, and they hold the same for the benefit of others – beneficiaries, heirs, dependants, survivors, creditors, among others. They stand in a fiduciary position in relation to the property and the beneficiaries. As they told the property for the benefit of others or on behalf of others – they stand to account to the person for whose benefit or on whose behalf they hold the property. It is an equitable duty and a statutory obligation.” (own emphasis)

28. Finally, in Re Estate of Julius Mimano (Deceased) (Supra), the court held that:“In the instant case, the Executors herein, owe a fiduciary duty to the beneficiaries of the estate of the deceased and indeed the Applicant, for whose benefit they hold the assets of the estate, to account for their dealings with the same. Thus, under the provisions of Section 83 of the Act, the Executors are required to produce to court, accounts within 6 months from issuance of the grant and also within 6 months from confirmation of the grant or after completion of the administration of the estate. Accounts must also be produced when the courts of its own motion or on the application of an interested party requires the same either before or after completion or administration of the estate.” (own emphasis)

29. I do agree with the submissions of the Applicant that the Executors cannot use the excuse that each House was managing its own properties to run away from their statutory obligation to render accounts. Having accepted to take up the role as Executors, the Respondents are deemed to have accepted all the obligations attendant to that role. I find that the Executors herein are duty bound to render accounts of the estate of the Deceased. It is however pertinent to note that this cause has had a very long and convoluted history. The 1st and 2nd Respondents only came onboard as Executors in 2019 when vide a Ruling delivered on 3rd June 2019 Hon Justice Muchelule appointed the two as the Executors of the last Will of the Deceased.

30. Prior to the appointment of the 1st and 2nd Respondents as Executors of the Estate, letters of Administration had been issued to other parties but said letters were revoked on 28th February 2007 by Hon Lady Justice Koome (as she then was). The Respondents obviously cannot be expected to render accounts for the period preceding 2019 when they were not the Executors of the estate. They can only be expected to render accounts for the period falling after 3rd June 2019, following their appointment as Executors.

31. Finally, the Applicant has alleged that certain of the properties of the Deceased have not been listed in the written Will. The Applicant has cited certain properties but she has not annexed any documentation to prove that the properties which she has cited the following as the properties belonging to the Deceased which were not included in the written will.a.M/V No. KYU 504 Pickupb.Barclays Bank Account Nyahururuc.Barclays Bank Account Ol Kaloud.Nyahururu/Lesirko/2750-2060e.Kahiga Trading Centre Commercial Plot Malewa

32. The question of whether or not the above assets belonged to the Deceased and the question of whether the same ought to be included as part of the estate are issues which can only be determined at a full hearing of the suit. Such determination cannot be made at this interlocutory stage on the basis of Affidavit evidence. Once again, this is a matter, which cannot be determined at this stage. The issue can only be determined at a full hearing of the suit.

33. Finally and in conclusion I find that his application is only partially successful and this court hereby makes the following orders:-(i)Preservatory orders be and are hereby issued preventing the Executors from selling transferring, charging or in any other way whatsoever intermeddling with the assets comprising the estate of the Deceased pending the hearing and determination of this summons for confirmation of Grant.(ii)The Executors/Respondents be and are hereby directed to file within ninety (90) days, comprehensive accounts on the status of the estate of the Deceased from 3rd June 2019 to date.(iii)This being a family matter I make no orders on costs.

DATED IN NAIROBI THIS 15TH DAY OF JULY 2022. ...............................MAUREEN A. ODEROJUDGE