[2023] KEHC 24893 (KLR)

In re Estate of Nelson Zadok Otieno (Deceased) (Succession Cause E1131 of 2022) [2023] KEHC 24893 (KLR) (Family) (27 October 2023) (Ruling)

Neutral citation: [2023] KEHC 24893 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause E1131 of 2022

PM Nyaundi, J

October 27, 2023

IN THE MATTER OF THE ESTATE OF NELSON ZADOK OTIENO (DECEASED)

Between

Anthony Olendo

Citor

and

Roselyn Otieno

1st Respondent

Daniel Omondi

2nd Respondent

and

Grace Akinyi Otieno

Interested Party

Thomas Joseph Otieno

Interested Party

Gillian Mauko Onuko (Legal representative of the Estate of Elizabeth Faith Onuko- Deceased)

Interested Party

Beneah Willis Onyango Otieno

Interested Party

Rose Margaret Otieno

Interested Party

James Otieno

Interested Party

Juliet Achieng (Surviving Heir To Daniel Otieno Deceased’S Son)

Interested Party

Mariam Otieno

Interested Party

Ruling

1. The Application for determination is the Chamber Summons dated 9th December 2022 presented under the provisions of Sections 39,45,47 and 76 of the Law of Succession Act, Rules 4491), 49, 63 and 73 of the Probate and Administration Rules, Section 1A, 1B and 3A of the Civil Procedure Rules. The Applicant seeks the following orders; -1. Spent2. That Honorable Court be pleased to issue an order restraining the Respondents, their agents, servants and or employees from intermeddling and/ or interfering with the Deceased’s Estate including but not limited to Land Reference Numbers 7191 and 5456 situated at Miwani, Kisumu County, Land Reference Number 1/267 situated at Kilimani, Nairobi and bank accounts domiciled at ABSA Bank Kenya PLC and KCB Bank Limited, pending the hearing and determination of this.3. That the Honorable Court be pleased to issue an order compelling the Respondents to account for all funds and and/ or proceeds they have collected and/ or received from the Deceased’s Estate from the date of his demise on 29th March 2022 to- date and clearly itemize how they were utilized, spent and or preserved.4. That the Honorable Court be pleased to issue an order restraining the Respondents, their agents, servants and/ or employees from intermeddling and /or interfering with the Deceased’s Estate Including but not limited to Land Reference Numbers 7191 and 5456 situated at Miwani, Kisumu County, Land Refe4ence Number 1/267 situated at Kilimani, Nairobi and bank accounts domiciled at ABSA Bank Kenya PLC and KCB Bank Limited until Letters of Administration and a confirmed grant in respect of the Deceased’s Estate is issued by this Court.5. That the Honorable Court be pleased to order for a forensic audit of the Deceased’s Estate accounts from the date of his demise to-date, and to be conducted by reputable audit firm to be agreed upon by majority of the Beneficiaries failing which the Court to appoint one.6. That the Honorable Court be pleased to order the Respondents to refund all the proceeds they have withdrawn from the Deceased’s accounts and / or misappropriated from the Entire Estate.7. That the Honorable Court be pleased to order that all future income for the Deceased’s Estate be collected and deposited in a joint account to be operated by representatives from all the nine (9) surviving beneficiaries.8. That the Honorable Court be pleased to direct the respondents to render a full and accurate inventory of all the assets of the Deceased’s Estate.9. That the Honorable Court be pleased to issue any other order that may be just and in the interest of preservation of the Deceased’s Estate.10. That costs be provided for

2. The Application is supported by Affidavit of the Applicant sworn on 5th November 2022 and further affidavit sworn on 24th February 2023. The Application was opposed by Affidavit sworn by 1st respondent on 3rd February 2023.

3. Parties agreed to canvass the Application by written submissions. The Submissions of the Applicant are dated 27th March 2023, whilst those of the respondent are dated 27th April 2023. While those of the Respondents are dated 27th April 2023. Both parties concede that letters of administration are yet to be granted with respect to the Estate of the deceased.

4. In summary, the Applicant identifies the following as the issues for determinationa.Whether the Honourable Court is clothed with powers to issue the orders soughtb.Whether the Applicant has made out a case for the Issuance of orders sought

5. The Respondents on their part isolate the issues for determination as beinga.Whether the Application meets the Conditions for grant of an injunctionb.Whether the Application has been brought under the right provisions of lawc.Whether the court can issue a direction ordering the rendering of accounts and for a forensic audit to be conducted.

Analysis And Determination 6. Having considered the rival pleadings, submissions filed herein, authorities cited and the relevant law I discern the following as the issues for determinationa.Whether the Applicant has locus standi to present this applicationb.If (a) is answered in the Affirmative, whether the Applicant has made out a case for the issuance of orders sought?

7. The facts in the instant case are almost on all fours with those in Edema & 2 others v Edema & 5 others (Miscellaneous Succession Cause E001 of 2022) [2022] KEHC 9960 (KLR) (6 July 2022) (Ruling) in which the Applicant sought orders against the Respondents for intermeddling. As in the instant case the Applicants in that case presented the Application in the absence of Letters of Administration.

8. On locus standi, the Court cited with approval the decision in Alfred Njau v City Council of Nairobi (1983) KLR 625 where the Court of Appeal stated-locus standi literally means a place of standing and refers to the right to appear or herd[sic] in court proceedings and to say that a person has no locus standi means that he/she has no right to appear or be heard in such and such proceedings.

9. The Court further referred to the decision of Dulu J. in the matter of the Estate of Geoffrey Meitamei Lonina (Deceased) [2012] eKLR where the Court statedIndeed, under Section 45(1) and (2) of the Law of Succession Act (Cap 160) this Court has powers to protect the assets of a deceased person. However, in my view only an administrator or an interested party in an existing administration cause, can apply for protection of the deceased’s assets. In the present matter, no application for letters of administration has been filed under Sections 51, 53 or 54 of the Law of Succession Act. Therefore, in my view, the provisions of Section 45 of the Act cannot be brought into play by the applicant. She has no legal standing in law to bring the present application. On that account, I find that the application is misconceived.

10. More recently in the case of in re Estate of James George Maruti (Deceased) [2021] eKLR Riechi J summarized it as follows-The applicant may be having a cause of action or interest as a beneficiary to protect and preserve the estate or intermeddling and waste. She however has lacked locus standi to secure the relief sought. Without first obtaining either limited or full grant of letters of administration.

11. In Conclusion I find that it is well established by law and judicial precedent that for a party to move to preserve the estate they need to be clothed with the requisite mandate, in this instance letters of administration. The orders sought are also not issuable against the Respondents as they have not taken out letters of administration with respect to the estate. Having found that the Applicant has no locus standi, I am unable to proceed and consider the merits of the Application.

12. For the foregoing reasons, the Application dated 9th December 2022 is struck out. Owing to the relationship between the parties and the nature of the Application there shall be no order as to costs.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 27TH DAY OF OCTOBER, 2023. P. NYAUNDIJUDGEIn the presence of:Okiror for the ApplicantOkaka for the Respondent