[2017] KEHC 5700 (KLR)
The court found that the executrix, Mary Waithera Mutambu, had expressed her intention to withdraw from administration and had failed to comply with court orders to file accounts, which justified her removal as personal representative. The court further determined that Petronilla Wambui Maina should be appointed as...
Source-derived case information.
- Citation
- [2017] KEHC 5700 (KLR)
- Parties
- Applicant: Peter Mutamba Karumi; Applicant: Petronilla Wambui Maina; Respondent: Mary Waithera Mutambu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 2986 of 2007
- Procedural Posture
- Succession Cause / Ruling on Application for Substitution of Executrix and Related Orders
- Outcome
- application allowed
- Judges
- DN Musyoka
- Legal Topics
- Grant Revocation, Executor Removal, Letters of Administration, Estate Administration, Will Interpretation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Mutamba Karumi
Applicant
Petronilla Wambui Maina
Applicant
Mary Waithera Mutambu
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Substitution of Executrix and Related Orders
Legal Issues
- 1 Whether the executrix, Mary Waithera Mutambu, should be removed as personal representative of the deceased's estate.
- 2 Whether Petronilla Wambui Maina should be appointed as administrator in place of the removed executrix.
- 3 Whether the rental income from Mungaria House should be used to settle the deceased's hospital bill at Nairobi Hospital.
Ratio Decidendi
The court found that the executrix, Mary Waithera Mutambu, had expressed her intention to withdraw from administration and had failed to comply with court orders to file accounts, which justified her removal as personal representative. The court further determined that Petronilla Wambui Maina should be appointed as administrator in her place, and that the grant should be amended accordingly. The court also found sufficient evidence of a genuine debt owed to Nairobi Hospital and ordered that rental income from Mungaria House be used to settle this debt. The costs of the application were ordered to be borne by the removed executrix.
Court Disposition
application allowed
Orders
- Mary Waithera Mutambu is removed as personal representative of the deceased's estate and Petronilla Wambui Maina is appointed as administrator in her place.
- The grant made on 5th March 2008 shall be amended accordingly.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. 2986 OF 2007
IN THE MATTER OF THE ESTATE OF MICHAEL KARUMI MUTAMBA (DECEASED)
RULING
1. What is for determination is the application dated 7th September 2016, for substitution of an executrix as personal represenatative of the deceased. There is also a prayer that the income collected from Mungaria House, which belongs to the estate, be utilized to settle a hospital bill owing to the Nairobi Hospital. It is supported by the affidavits of Peter Mutamba Karumi, a co-executor of the will of the deceased, and Petronilla Wambui Maina, the proposed co-administrator.
2. The application is founded on the allegation that the executrix sought to be removed as administrator had written withdrawing from administration of the estate. I have seen the alleged letter which is dated 7th March 2014, addressed to the beneficiaries. In it the executrix, Mary Waithera Mutambu, expresses her wish to withdraw from administration of the estate.
3. I have carefully perused my record. I have noted that I had made orders on 25th April 2014 directing the said executrix to file accounts in respect of her administration of the estate. She has never complied with those directions, and there is an unexecuted warrant for her arrest made on 6th October 2015. Failure to comply with court orders calling for tender of accounts is one of the grounds upon which a court can revoke a grant under section 76(d)(iii) of the Law of Succession Act, Cap 160, Laws of Kenya. What the applicants are asking me to do is to revoke the grant on record to the extent it appoints the executrix a personal representative of the estate of the deceased.
4. The executrix was served with the application, according to the affidavit of service on record sworn on 15th September 2016 and filed herein on 16th September 2016. She had opportunity to file a response to the application, but it would appear that she chose to stay away.
5. On the matter of the debt to the Nairobi Hospital, I have seen the documentation in support of the prayer thereon. I am satisfied that there is a genuine debt to that institution which remains unsettled.
6. I am satisfied that there is basis for grant of the orders sought, I shall accordingly dispose of the said application as follows:
(a) That I hereby order the removal of Mary Waithera Mutambu as one of personal representatives of the deceased and appoint Petronilla Wambui Maina as administrator in her place;
(b) That the grant made on 5th March 2008 shall be amended accordingly;
(c) That as Petronilla Wambui Maina is not named in the will of the deceased dated 23rd November 2006 as executrix, the amended grant to be issued under (b) above shall be a grant of letters of administration with written will annexed;
(d) That the rental collections from Mungaria House shall be utilized by the administrators to settle the deceased’s hospital bill at the Kenya Hospital Association trading as the Nairobi Hospital; and
(e) That Mary Waithera Mutambu shall bear the costs of the application.
DATED, SIGNED and DELIVERED at NAIROBI this 12TH DAY OF MAY, 2017.
W. MUSYOKA
JUDGE