[2022] KEHC 15875 (KLR)

In re Estate of Moses Maina Ndegwa (Deceased) (Succession Cause 375 of 2019) [2022] KEHC 15875 (KLR) (Family) (11 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15875 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 375 of 2019

MA Odero, J

November 11, 2022

IN THE MATTER OF THE ESTATE OF MOSES MAINA NDEGWA (DECEASED)

Between

Virginia Wanja Waititu

Applicant

and

Mathew Ndegwa Maina

1st Administrator

Douglas Mureithi Maina

2nd Administrator

Ruling

1. Before this court for determination is the summons dated May 12, 2022 by which the applicant Virginia Wanja Waititu seeks the following orders:-“1. Spent.2. That this honourable court be pleased to make an order that the applicant the only widow of the deceased take possession and occupy the residence on Plot I-127B known as LR Nairobi Block 105/13966; rent from 10 rooms on LR Othaya/Kihugiru/1735 and bank the rental income and tea sale proceeds in the Administrator’s joint account 1286408784 held at Kenya Commercial Bank Milimani Branch.3. That this honourable court be pleased to make an order for reasonable provision of monthly maintenance in the sum of Kshs 61,333. 30 or such other sum as the court may deem fit to the applicant for her upkeep, the only widow of the deceased pending confirmation of grant.4. That the court be pleased to make such orders it may deem fit and convenient to meet the ends of justice and5. That the costs of this application be provided for.”

2. The application which was premised upon Article 57 of theConstitution of Kenya 2010, sections 26, 27, 28, 29 and 47 of the Law of Succession Act Cap 160 Laws of Kenya, Rules 49 and 73 of the Probate and Administration Rules 1980, and all other enabling provision of law was supported by the affidavit of even date and the supplementary affidavit dated July 25, 2022

3. The respondent Douglas Mureithi Maina (a co-Administrator of the estate of the deceased) vehemently opposed the application through the replying affidavit dated June 9, 2022. The matter was canvassed by way of written submissions. The applicant filed the written submissions dated July 25, 2022, whilst the respondent relied upon his written submission dated July 22, 2022.

BACKGROUND 4. This Succession Cause relates to the estate of the late Moses Maina Ndegwa (hereinafter ‘the deceased’) who died intestate on March 6, 2019. The deceased is said to have been survived by the following persons:-(1)Virginia Wanja Waititu – Wife(2)Mathew Ndegwa Maina- son(3)Douglas Mureithi Maina – son

5. Following the demise of the deceased the applicant herein on her capacity as a widow filed a petition dated March 27, 2019 seeking to be appointed as a sole administrator on the estate.

6. The two adult sons of the deceased Mathew Ndegwa Maina and Douglas Mureithi Maina filed an objection to making of Grant dated October 17, 2019. The parties then reached a consent on June 7, 2021 in the following terms: -“1. That Virginia Wanja, Mathew Ndegwa Maina and Douglas Mureithi Maina are appointed as joint administrators of the estate of Moses Maina Ndegwa.2. That the objection proceedings filed on October 18, 2019 are marked as settled with no costs as to cost.3. That the joint administrators open a joint interest earning account to hold the income of the estate.4. .....................................5. .....................................”

7. Thereafter the co-administrators in compliance with the consent orders did open an estate account being Account No 128xxxxx84 held at Kenya Commercial Bank into which all rental income derived from the estate properties was to be deposited.

8. Following the consent a summons for confirmation of grant dated April 19, 2022 was filed. The applicant then filed a Protest dated May 12, 2022. However, before that Protest could be heard the applicant filed this present application seeking various orders.

9. The applicant avers that she is the only widow of the deceased and is aged sixty one (61) years. She states that the other beneficiaries of the estate are two (2) adult sons of the deceased who reside and work for gain in the USA where they are citizens. She states that she currently has no source of income as her employment as a coordinator with Women of Hope Kenya Project was terminated in December 2020 due to lack of sponsorship following the Covid 19 Pandemic. Similarly, the applicant states that her Air Band B business from which she derived some income is no longer operational due to the Covid-19 pandemic.

10. The applicant avers that the extent of the estate of the deceased has been established which said estate comprises of the following assets:-“(a)Plot 1-127 Embakasi known as Nairobi Block 105/1617 approximate value Kshs 3,000,000/-(b)3 bedroomed house and 7 rental rooms in Plot 1-127B Embakasi known as Nairobi Block 105/13966 approximate value Kshs 7,000,000/-. The rent is Kshs 2,500/- per month.(c) LR Othaya/Kihugiru/1735 approximate value Kshs 3,000,000/- with 10 rental rooms whose rent is Kshs 1,000/- per room per month.(d)LR Othaya/Kihugiru/2944 approximate value Kshs 2,500,000/-.(e) A sum of Kshs 200,000 held in the Deceased’s account 111xxxxx85 at Kenya Commercial Bank Prestige Plaza.(f)Income from the grown on the land parcel LR Othaya/Kihugiru/2944 of Kshs 3,500 per month with an annual bonus averaging Kshs 200,000/-.”

11. The applicant states that due to the termination of her employment she is no longer able to afford the premises which she has been occupying and currently owes rent arrears of Kshs 140,000/-. That being in need of decent accommodation the applicant prays that the court direct that she take up possession and occupation of the matrimonial home at Embakasi being Plot 1-127B Nairobi Block 105/13966 (hereinafter referred to as the ‘Embakasi Property’)

12. The applicant prays that the court do make an order for reasonable provision for monthly maintenance for herself in the amount of Kshs 61,333. 30, pending confirmation of the grant.

13. The applicant laments that a sister to the deceased one Esther Muringi is allegedly occupying the matrimonial home in Embakasi and collected renal income therefrom in contravention of the consent dated June 7, 2021. The applicant states that should she be allowed to occupy that home then her monthly expenses/requirements will reduce to Kshs 16,333. 30 per month.

14. The applicant states that she has not received any advancement and/or gift from the deceased during her lifetime. She prays that her application be allowed as prayed.

15. In her supplementary affidavit dated July 25, 2022 the Applicant reiterates that she is the only widow of the deceased. She asserts that the deceased and the respondents mother were infact never married and that the respondents mother relocated to the USA where she is now married. The applicant asserts that in her capacity as the only widow of the deceased she is fully entitled to seek reasonable provisions from the estate in order to meet her basic needs.

16. The applicant insists that the deceased’s sister Esther Muringi has no legal right to occupy the home in Embakasi and that in the absence of a consent signed by all the other beneficiaries, the said sister has no right to collect the rental income from the said property. The applicant insists that the said Esther Muringi is infact an intermeddler who is usurping the powers of the administrators and adds that there is need to prevent the continued wastage of the estate. That if the applicant is allowed to occupy the family home then she will save the Kshs 40,000/- per month which is the rent she pays at her current residence.

17. As stated earlier the application was opposed by both Respondents through the replying affidavit sworn by Douglas Mureithi Maina who is the one of the co-administrators of the estate. The respondent insisted that the applicant had not met the requirements warranting an order for reasonable provisions to be made in her favour. That the income derived by the estate is not sufficient to meet the amount of Kshs 61,333. 30 which is being sought by the applicant as some of the properties do not have tenants. That the estate only earns an income of Kshs 20,000.

18. The respondents argues that the estimated value of the estate of Kshs 15,000,000 given by the applicant was not based on any sound or professional valuation. The respondents contends that to grant the orders being sought by the applicant would be tantamount to disinheriting the remaining beneficiaries.

19. The respondent avers that there is no income being generated from the tea being grown on LR Othaya/Kihugiru/2944. That since the demise of the deceased, nobody has picked the tea. Further, the respondent avers that even the amount of Kshs 200,000 in the deceased’s bank account would not be sufficient to meet the demands being made by the applicant.

20. The respondent accuses the applicant of not being honest in the averments she has made in court. He denies that the deceased was providing for the applicant immediately prior to his death and states that she cannot now claim maintenance from his estate. That in fact the applicant and the deceased had a very strained relationship and the two had resided separately for over ten (10) years. The respondent states that the applicant resided in Kileleshwa whilst the Deceased resided with his sister Esther Muringi (who was caring for him) and her children in the family home in Embakasi until the date of his death.

21. The respondent states that the deceased only stayed in the house of the applicant once as said house was close to the hospital where the deceased was receiving treatment. That even then the deceased called his brothers to remove him from the applicants house citing mistreatment from the applicant.

22. The respondent continues to claim that the behavior of the applicant towards the deceased has been self seeking and manipulative. He accuses the applicant of trying to manipulate hospital records in an attempt to include herself as the next of Kin of the deceased.

23. The respondent vehemently opposes the applicants prayer to be allowed to enter and occupy the family home in Embakasi. He states that said property is now being occupied by the deceased’s sister and her children with the full authority, consent and approval of the co-administrators. That this is the only home their Aunt has ever known and to eject her would mean that she would be rendered homeless.

24. The respondent states that the income derived from the rental units at the family home is only Kshs 2,500 per month, which the said Esther Muringi is utilizing for her upkeep and to clear an outstanding electric bill of Kshs 40,000 owing on the property. The respondent further explains that the Embakasi home has no running water and thus the occupants have to regularly purchase water to meet their domestic needs.

25. Finally the respondent avers that this Embakasi property was purchased by the deceased and his first wife thus the applicant cannot claim the said property as her matrimonial home. The respondent submits that the current application is totally without merit is an abuse of court process and urges this court to dismiss the case.

Analysis and Determination 26. I have carefully considered the application before this court, the reply filed by the respondents as well as the written submissions filed by both parties. The following are the issues which arise for determination-(i)Whether the applicant is entitled to reasonable provision from the estate.(ii)Whether the applicant should be allowed to manage the estate.(iii)Whether the applicant is entitled to an order authorizing her to enter and occupy the Family home.

(i) Reasonable provision 27. The applicant seeks to be allowed a reasonable provision from the estate of the deceased in order to enable her rent a home and provide for her other needs. The applicant states that due to the loss of her job and the deterioration of her Air B and B business due to the Covid-19 Pandamic she is no longer in a position to provide for herself. That as the only widow of the deceased and a beneficiary to his estate she is entitled to reasonable provision from the estate pending the confirmation of the grant. She seeks to be awarded an amount of Kshs 61,333. 30 per month.

28. In opposing this application for reasonable provision the respondent counters that the estate of the deceased has not been professionally valued to enable the court determine what is immediately available for distribution to the deceased.

29. Section 26 of the Law of Succession Act provides:“Where a person dies after the commencement of this Act, and so far as succession to his property is governed by the provisions of this Act, then on the application by or on behalf of a dependant, the court may, if it is of the opinion that the disposition of the deceased’s estate effected by his will, or by gift in contemplation of death, or the law relating to intestacy, or the combination of the will, gift and law, is not such as to make reasonable provision for that dependant, order that such reasonable provision as the court thinks fit shall be made for that dependant out of the deceased’s net estate”

30. Section 27 of the Law of Succession Act provides:“In making provision for a dependant the court shall have complete discretion to order a specific share of the estate to be given to the dependant, or to make such other provision for him by way of periodical payments or a lump sum, and to impose such conditions, as it thinks fit.”

31. Section 28 of the Law of Succession Act provides:In considering whether any order should be made under this Part, and if so what order, the court shall have regard to—(a)the nature and amount of the deceased’s property;(b)any past, present or future capital or income from any source of the defendant;(c)the existing and future means and needs of the dependant;(d)whether the deceased had made any advancement or other gift to the dependant during his lifetime;(e)the conduct of the dependant in relation to the deceased;(f)the situation and circumstances of the deceased’s other dependants and the beneficiaries under any will;(g)the general circumstances of the case, including, so far as can be ascertained, the testator’s reasons for not making provision for the dependant. (Own emphasis)

32. It is not in dispute that the applicant is a widow of the deceased. However, I do agree with the respondent that since the estate has not been professionally valued the court cannot at this stage make an informed and definitive decision regarding what is available for distribution to the beneficiaries much less what portion of the estate (if any) the applicant would be entitled to.

33. Secondly, the applicant bases her claim for reasonable provision on the fact that she contributed towards the acquisition and development of the Properties owned by the deceased and that she cared for the deceased while was ill. These claims are denied by the respondent. The court cannot at this stage make a determination on the above issues without having had a chance to hear oral evidence from both parties. In any event, the Applicant did not annex any proof of her alleged contribution towards the acquisition and development of the estate properties.

34. The respondent insists that the applicant and the deceased had separated prior to the death of the deceased and that each lived in separate residences. The applicant appears to confirm this when she states that she lived in her own house in which she paid rent of Kshs 40,000. The applicant also confirms that she was in paid employment and was therefore a position to meet her own needs. Does she in the circumstances require maintenance from the estate?

35. All these are issues which cannot be determined at this stage on the basis of affidavit evidence. The question of if and to what extent the deceased was providing for the applicant are matters which can only be determined at a full hearing at which the parties will be at liberty to adduce evidence.

36. The question of whether or not reasonable provision has been made to the applicant can only be determined once the proposed mode of distribution of the estate has been determined. It is only then that the court can determine whether the portion of the estate devolving to the applicant is adequate or not.

37. In the bookLaw of Succession at pages 309-310 W M Musyoka set out the test if reasonable provision as follows:-“The court may only order provision for an applicant falling within the categories set out in section 29 of the Law of Succession Act if it is satisfied that either the deceased’s will, if any, or the rule of intestacy if the deceased died without leaving a valid will, or gift in contemplation of death, or a combination of all three or any two of them, do not make ‘reasonable provision’ for the applicant....Section 28 of the Law of Succession Act sets out the standard of ‘reasonable provision’.”

38. Given that the summons for confirmation of grant is yet to be heard it is my views that the applicant is jumping the gun, so to speak, by applying for ‘reasonable provision’ before the mode of distribution of the estate has been established. An estate is not a bank account or an ATM for one to dip into at will.

39. I therefore find that the applicant has not made out a persuasive case at this stage for payment of reasonable provision from the estate. The question of her entitlement (if any) to the estate is best left for determination at the point of confirmation of the grant. The applicants prayer for reasonable provision is in the circumstances premature and the same is denied.

(ii) Management of the estate 40. The applicant alleges that the estate of the deceased is being mismanaged. She prays for orders authorizing her to manage the estate by collecting and banking all the rental income derived from the estate as well as all income derived from the tea farms which were owned by the deceased.

41. The applicant submits that her co-Administrators who are the biological sons of the deceased both reside in the United States of America and that they have delegated all their duties to their Aunt Esther Muringi who is a sister of the deceased.

42. The respondent retorted that this is a devious attempt by the applicant to review the consent made on June 7, 2020 and is an attempt by the applicant to derive benefit from the estate to the exclusion of the other beneficiaries.

43. Section 83 of the Law of Succession Act places a duty on all the administrators of an estate to preserve said estate and to ensure that the same does not go to any waste. The applicant has not adduced any evidence to support her allegation that the estate is being subjected to waste.

44. As pointed out by the respondent following the consent entered into by the parties on June 7, 2020 all tenants were directed to be depositing their rent into the estate Account No 128xxxxx84 held at the Kenya Commercial Bank. The respondent has annexed to his replying affidavit dated June 9, 2022 copies of several deposit slips (annexture DMM-‘7’) indicating that the tenants have been depositing the rental income into the said account.

45. Likewise the respondent has also annexed to his replying affidavit a copy of the Income and expenditure report for the Embakasi property (Annexture DMM ‘2’) showing that there is an outstanding electricity bill of Kshs 43,500/-. This outstanding amount is being settled out of the estate. In my view, this is correct and in order. It cannot be deemed to amount to wastage if the outstanding electricity bill due in respect of estate property is being settled out of estate funds.

46. We live in a digital age. Much of banking today is done online. The fact that the two (2) co-administrators reside in the USA does not mean that they cannot effectively deal with the estate. The applicant and the two (2) sons were appointed as Co-administrators of the estate therefore none of them has superior right to administer the estate, they must act jointly.

47. Regarding the tea farms the respondents averred that the tea being grown on LR Othaya/Kihugiru/2944 has not generated any income since the death of the deceased. The applicant has not adduced any evidence to show that the tea farm has generated ay income since the demise of the deceased.

48. I do agree with the respondent that the applicants prayer to be allowed to manage the estate is another way of seeking to review and/or alter the consent of June 7, 2020. The grounds upon which a consent may be altered and/or reviewed are clearly set out in law. I find no merit in the applicants prayer to be allowed to manage the estate on her own and I do dismiss the same.

(iii) Occupation of Plot 1-127B on LR No Nairobi Block 105/13966 49. It is not in dispute that the above property belongs to the estate. It was the home which the deceased occupied prior to his death. The applicant seeks orders to authorize her to enter and occupy the said property which she avers was her matrimonial home. She complains that the property is currently being occupied illegally by a sister to the deceased and demands that the said sister Esther Muringi be ordered to vacate.

50. The respondent denies that this ‘Embakasi Property’ was the matrimonial home. They claim that the applicant has all along been living in the Kileleshwa area of Nairobi. That their aunt being the person who cared for the deceased prior to his demise lived on said property with the deceased and that she has the full authority of the respondents to continue residing on said property.

50. Firstly the orders of occupation being sought by the applicant also involved a prayer for mandatory orders to evict ‘Esther Muringi’ who she confirms currently resides in the property. The court cannot make such orders without first according the occupant the said ‘Esther Muringi’ a hearing.

51. Secondly, the question of whether or not the Embakasi Property was infact the matrimonial home cannot be determined on the basis of affidavit evidence. Once again, this is an issue which can only be determined after a full hearing.

52. For the above reasons, I am not inclined to grant the Applicants prayer to be allowed to occupy the ‘Embakasi Property at this stage.

53. Finally, I find no merit in this application. The summons dated May 12, 2022 is hereby dismissed in its entirety.

54. This being a family matter each side will bear its own costs.

DATED IN NAIROBI THIS 11TH DAY OF NOVEMBER, 2022. …………………………………MAUREEN A. ODEROJUDGE