[2017] KEHC 2077 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MERU

SUCCESSION CAUSE NO. 240 OF 2009

In the Matter of the Estate of M’ Batutua Kithia Lingili (Deceased)

JOHN MEME BARUTU.........................................................PETITIONER

-Versus-

STANLEY KARURU M’ BARUTUA................................1ST APPLICANT

DANIEL KOBIA...............................................................2ND APPLICANT

PETER MURUNGI M’ BARUTUA.................................3RD APPLICANT

RULING

[1] Before me are Summons dated 22nd September 2016 brought pursuant to the provisions of Section 47 of the Law of Succession Act and Rules 49 and 73 of the Probate and Administration Rules in which the Applicants seek the following orders:

1. ………………………………………………spent

2. That this honourable court be pleased to order and direct that John Meeme Barutua do deposit in court or into a bank account in the joint names of the Administrators, the total sum of Kshs 1,160,462 withdrawn by him from the deceased bank account No xxxxxat Barclays Bank, Meru Branch.

3. That the honourable court be pleased to order and direct that John Meeme do render full account for the proceeds of sale of Barclays Bank shares.

4. That the honourable court be pleased to order and direct that John Meeme do render a full account of all moneys received by him in form of dividends out of the deceased shares in Barclays Bank.

5. That the Respondent John Meeme Barutu do pay costs of this application.

[2] The gist of the Application is that the Applicants are joint administrators of the estate of the deceased. In the course of administration of the estate, they discovered that the Respondent withdrew from the deceased’s bank account no. xxxxxx, Barclays Bank, Meru Branch, a total sum of Kshs 1,160,462 and used the money for his exclusive benefit; he did not share it with other beneficiaries of the deceased estate. They further contended that they had discovered that the deceased held shares in Barclays Bank and that the Respondent had transferred all of them to himself. He has also taken all the annual dividends paid upon those shares. As such, the Applicants contended that the Respondent should give full account of all the moneys he withdrew from the bank account of the deceased and deposit it as prayed to be distributed to the beneficiaries of the deceased.

[3] The Application was opposed via a Replying Affidavit filed in court on 10th January 2017. The Respondent averred that he shared the money that he withdrew from the bank account as required of him by law and that before the money was shared, he had summoned all family members in the presence of elders namely; Fredrick Ngure, Joseph Mutuura and M’ Nchebere M’ Itumitu among others.

Directions

[4] When the matter came up for hearing on 15th February 2017, the court inter aliadirected the Petitioner within 30 days to file and serve accurate account in respect of all transactions of the estate including the monies withdrawn which was the subject of this Application, and upon interrogation of the accounts the court would determine prayer 2 of the instant application.

Affidavit on accounts

[5] The Petitioner filed an affidavit on 13th March 2017 which he called a full account and disclosure of how the proceeds in Barclays Bank was shared out. The Applicants and one Ciokatheru Mbarurua on the other hand have filed affidavits denying having ever received any share of the cash withdrawn by the Petitioner from the deceased’s bank account. They contended that had they received any money, they would have signed for it as acknowledgement of receipt. In addition, they deposed that all the expenses listed under legal fees, meetings at District Commissioners Office, transport, expenses on wazees were cooked up and were not expended. According to the Applicants, the Petitioner had been unable to account and should be asked to deposit the money in court to be shared by the beneficiaries of the estate.

Submissions

[6] The Applicants filed submissions in support of their arguments above. They argued that in the certificate of confirmation dated 8th March 2010, the Petitioner gave himself the entire amount in Account No. xxxxx at Barclays bank and that he did not share this amount with the objectors and had not explained or accounted for the money. In these circumstances, the Applicants submitted that it was only fair for the petitioner to be ordered to deposit the sum of Kshs 1,160,462 to court so that the same could be shared as part of the estate.

[7] The Respondent also filed submissions in support of his averments that he had summoned all the family members in the presence of elders and shared the monies in the account and that what he had done was to effectuate the Grant of Representation by administering the estate according to law.

DETERMINATION

[8] I have carefully considered this Application and the rival submissions by the parties. Doubtless, a sum of Kshs 1,160,462. 00 was paid to the Petitioner as a beneficiary of the deceased estate as evidence by a letter dated 2nd September 2013 written by Barclays bank to the Applicants advocates. The Respondent filed an affidavit in court on 13th March 2017; purportedly to render a full account and disclosure of how the proceeds from Barclays bank account No. xxxxx were shared out. The Respondent alleged that he had summoned all the family members in the presence of elders and shared the said monies which was merely to effectuate the Grant of Representation herein. Curiously, however, there are no supporting documents that were annexed thereto as proof of how the money was utilized. In fact, the Applicants denied having ever received any share of cash withdrawn by the Petitioner from the deceased’s bank account. In light thereof, the only logical inference that can be made out of these facts is that the Petitioner did not render an account in respect of monies withdrawn from the deceased’s bank account as ordered by the court. Accordingly, I find the application to be merited and I allow it in the following specific orders:-

1. That John Meeme Barutua shall within 60 days of today deposit into a bank account in the joint names of the Administrators, a sum of Kshs 1,160,462 withdrawn by him from the deceased bank account No xxxxxx at Barclays Bank, Meru Branch. The said joint account, if it is not yet in existence, shall be opened in a reputable bank by the administrators within 7 days of today.

2. That John Meeme Barutua shall within 30 days render full account of the proceeds of sale of Barclays Bank shares as well as all moneys received by him in form of dividends out of the deceased’s shares in Barclays Bank.

3. On satisfaction of (2) above, the court shall give further directions on the deposit of any sum found to be due to the estate into account in (1) above.

4. John Meeme Barutu shall pay costs of this application.

Dated, signed and delivered in open court at Meru this 8th day of November 2017

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F. GIKONYO

JUDGE.

In the presence of:

M/s. Kiome advocate for Mwanzia advocate for Petitioner

Mr. Murango advocate for Objector

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F. GIKONYO

JUDGE.