[2022] KEHC 15992 (KLR)

In re Estate of Maurice Marie Guillaume Pierre De Brouwer (Deceased) (Succession Cause 2391 of 2007) [2022] KEHC 15992 (KLR) (Family) (2 December 2022) (Judgment)

Neutral citation: [2022] KEHC 15992 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 2391 of 2007

MA Odero, J

December 2, 2022

IN THE MATTER OF THE ESTATE OF MAURICE MARIE GUILLAUME PIERRE de BROUWER (DECEASED)

Between

Marie Elizabeth Christiane Adelaide de Brouwer

1st Petitioner

Guy Spencer Elms

2nd Petitioner

suing as the personal representatives of the Estate of Maurice Marie Guillaume Pierre de Brouwer (Deceased)

and

Regina Njeri De Brouwer

1st Respondent

Wairimu De Brouwer

2nd Respondent

Judgment

1. Before this court is the summons dated November 17, 2020 by which Marie Elizabeth Christiane Adelaide de Brouwer And Guy Spencer Elms (suing as the personal representatives of the estate of Maurice Marie Guillaume Pierre De Brouwer (Deceased) hereinafter the Applicants seek the following orders:-“1. That the Honourable court be pleased to order that Regina Njeri de Brouwer do forfeit her interest in property known as L.R. No. 7XXX/125 and L.R. No. 7660/126 Tigoni.

2. That in alternative to prayer 1, the Deputy Registrar executes and seals the vesting assents over and in respect of properties L.R. No. 7XX/125 and L.R. No. 7XXX/126 Tigoni.

3. That the Honourable court be pleased to order that the Executors and Administrators of the Estate of Maurice Marie Guillame Pierre de Brower (deceased) be permitted to sell the property known as L.R. No. 9XXX/1 Tigoni4. That the Honourable court be pleased to order that the said Regina Njeri de Brouwer and Wairimu de Brouwer do forfeit their interest in the sum of €325,695 together with any interest accrued.5. That in the alternative to prayer 4, the sum of €325,695 together with any interest accrued be deposited in the court for the benefit of Regina Njeri de Brouwer and Wairimu de Brouwer.

2. The Application which was premised upon order 37 of the Civil Procedure Rules and all enabling provisions of the law was supported by two Affidavits both dated November 17, 2020 sworn by the Applicants.

3. The Respondent Regina Njeri de Brouwer did not file any reply to the summons. The matter therefore proceeded as an undefended cause by way of viva voce evidence.

Background 4. The Deceased herein Maurice Marie Guillaume Pierre de Brouwer died in Nairobi on December 16, 2005. A copy of the Death Certificate Serial Number 9XXXX8 is annexed to the Petition for Probate dated September 4, 2007.

5. The Deceased who died testate having left behind a written Will dated September 13, 2005 a copy of which is annexed to the Petition for Grant of Probate was survived by the following persons:-i.Marie Elizabeth Christiane Adelaide de Brouwer – daughterii.Guillaume Marie Rene Alfred de Brouwer – soniii.Isabelle Marie Christiane de Brouwer –daughteriv.Harold Marie Thodore Ghislain de Brouwer – sonv.Regina Njeri de Brouwer – wifevi.Wairimu de Brouwer – niece to Regina de Brouwer

6. The Applicants herein were the Executors named by the Deceased in his Will. They applied for and obtained a Grant of Probate in their favour on February 5, 2008. The Grant was duly confirmed on October 4, 2010.

7. The Deceased also had properties in Switzerland, Belgium and France, which were not covered in his written Will. A Grant of letters of Administration intestate in respect of the foreign properties was on April 9, 2014 issued to the two Applicants. This Grant Intestate was duly confirmed on April 9, 2014.

8. Pursuant to the written Will dated 13th September 2005 the Deceased bequeathed to Regina Njeri de Brouwer (hereinafter ‘Regina’) the properties known as L.R. No. 6XXX/125 and LR No. 7XXX/126 both properties located in Tigoni Kiambu County.

9. The Respondents complain that Regina has totally refused and/or declined to execute the two vesting Assents as beneficiary to facilitate the transfer of the two Tigoni properties into her name making it impossible for the Administrators to conclude the distribution of the estate in accordance with the written Will left by the Deceased.

10. The Applicants further aver that in the same Will the same Regina Njeri de Brouwer was to acquire a life interest in the Property known as LR No 9XXX/1 in Tigoni on condition that she continued to reside there. The said Regina no longer lives on the property and her current whereabouts are not known.

11. That further the Deceased bequeathed to both ‘Regina’ and her niece WAIRIMU de BROUWER a sum of 325,695 Euros each. The Applicant laments that as Executors of the Will they have been unable to effect these bequests because the two beneficiaries cannot be traced.

12. The Applicants contend that the Respondents have remained incommunicado for a period of over sixteen (16) years making it impossible for the Executors to conclude the Administration of the Estate. That by their actions the Respondents should be deemed to have forfeited their interest in the assets which had been bequeathed to them. They pray that the assets be distributed to the remaining beneficiaries.

Analysis and Determination 13. I have carefully considered this summons, the evidence adduced by the Applicants as well as the written submissions filed on their behalf.

14. Order 37 Rule 1 of the Civil Procedure Rules 2010 provide as follows:“The executors or administrators of a deceased person, or any of them, and the trustees under any deed or instrument, or any of them, and any person claiming to be interested in the relief sought as creditor, devisee, legatee, heir, or legal representative of a deceased person, or as cestui que trust under the terms of any deed or instrument, or as claiming by assignment, or otherwise, under any such creditor or other person as aforesaid, may take out as of course, an originating summons, returnable before a judge sitting in chambers for such relief of the nature or kind following, as may by the summons be specified, and as circumstances of the case may require, that is to say, the determination, without the administration of the estate or trust, of any of the following questions—(a)any question affecting the rights or interest of the person claiming to be creditor, devisee, legatee, heir or cestui que trust;(b)the ascertainment of any class of creditors, devisees, legatees, heirs, or others;(c)the furnishing of any particular accounts by the executors, administrators or trustees, and the vouching, when necessary, of such accounts;(d)the payment into court of any money in the hands of the executors, administrators or trustees;(e)directing the executors, administrators or trustees to do, or abstain from doing, any particular act in their character as executors, administrators or trustees;(f)the approval of a sale, purchase, compromise or other transaction;(g)the determination of any question arising directly out of the administration of the estate or trust.”

15. As Executors of the Will the Deceased, the Applicants have a duty to distribute the estate to the beneficiaries named in the written Will. The duties of personal representatives are set out in section 83 of the Law of Succession Act Cap 160 Laws of Kenya.

16. The Applicants claim that their efforts to complete distribution of the estate of the Deceased have been frustrated by the non-availability and non co-operation by the Respondents who are the beneficiaries. They state that the bequests made to all the other beneficiaries have been effected and all that remains outstanding are the bequests made to the Respondents.

17. Efforts made by the Applicants to trace the Respondents have been unsuccessful. The Respondents are believed to have relocated to Belgium. PW1 Guy Spencer Elms told the court that the Deceased was in the company of his wife ‘Regina’ when he gave instructions to his advocate to prepare his Will. Therefore ‘Regina’ was fully aware that her husband had left a written Will. Yet she has made no effort to reach out to the Advocate to discuss the estate of her late husband.

18. The Respondents were initially being represented by Dr Kamau Kuria, SC. However, Counsel on May 18, 2023 sought and obtained orders to cease from acting for the Respondents. The Advocate informed the court that he had been unable to trace his client in order to take instructions in the matter.

19. The court then directed the Applicants to serve the Respondents by placing an Advert in a Newspaper of wide circulation in Kenya. This was done vide an Advert placed in the Daily Nation of March 22, 2022. The Advert elicited no response from the Respondents. I do believe that a relative of the Respondents who saw the Advert would have alerted her to the same.

20. The Respondents have been incommunicado since the year 2006 a period of sixteen (16) years. They have made no attempt to reach out to the Executors in order to settle the estate of the Deceased. The 1st Respondent was bequeathed a life interest in LR No.9XXX/1 Tigoni on condition that she maintained and insured the said property. She has failed to comply with this condition. Therefore her life interest in the said property extinguishes.

21. Regarding the Euros 325,695 payable to ‘Regina’ and ‘Wairimu’ the Administrators have been unable to trace the Respondents so as to deliver these funds to them. The said beneficiaries did not provide any bank details to which these funds can be sent. The funds cannot be held indefinitely. I direct that the Administrators forward the said funds to the Unclaimed Financial Assets Authority.

22. The Administrators have been unable to conduct the distribution of this estate in accordance with the wishes of the Deceased as set out in his written Will due to lack of communication and co-operation by the Respondents. The estate cannot be held in limbo indefinitely. I find that by her actions the beneficiary Regina de Brouwer has forfeited her interest in the properties bequeathed to her.

23. Under Section 47 of the Law of Succession Act, the High Court has inherent powers to make appropriate orders in the interest of justice and for preservation of the deceased’s estate. It reads as follows:-“The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient: Provided that the High Court may for the purpose of this section be represented by Resident Magistrates appointed by the Chief Justice.”

24. Similarly Rule 73 of the P&A also provides:-“Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.’

25. In order to bring finality to this matter, I find that the estate of the Deceased ought to be distributed. The Executors cannot be held at ransom by the Respondents who apparently have no interest in claiming/receiving their share of the Estate.

26. PW2 Marie Elizabeth Christiane Adelaide de Brouwer who is a daughter to the Deceased confirms that she supports this application.

27. Finally I do allow this present application and make the following orders:-(1)A declaration be and is hereby issued that Regina de Brouwer has forfeited her interest in the properties known as LR No. 7660/125 and LR No. 7XXX/126 Tigoni.(2)The Executors and Administrators of the Estate of Maurice Marie Guillaume Pierre de Brouwer (Deceased) be and are hereby permitted to sell the property known as L.R. No. 9XXX/1 Tigoni in accordance with Clause 10 of the written Will dated September 13, 2005. (3)The sum of Euros 651,390 together with any interest accrued due to ‘Regina’ and ‘Wairimu’ is to be forwarded by the Executors to the Unclaimed Financial Assets Authority.(4)No orders on costs.

DATED IN NAIROBI THIS 2ND DAY OF DECEMBER, 2022. ………………………………MAUREEN A. ODEROJUDGE