[2022] KEHC 13615 (KLR)

In re Estate of Patroba Makone Ombese (Deceased) (Succession Cause 302 of 2017) [2022] KEHC 13615 (KLR) (Family) (5 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13615 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 302 of 2017

AO Muchelule, J

October 5, 2022

IN THE MATTER OF THE ESTATE OF PATROBA MAKONE OMBESE (DECEASED) YOUNG ITEBA MAKONE.........................................APPLICANT VERSUS BATHSEBA MOKEIRA MAKONE...............1ST RESPONDENT CHARLES OSORO MAKONE.........2ND RESPONDENT

Ruling

1. The deceased Makone Ombese died testate on August 12, 2015. On July 10, 2017 his widow Bethseba Mokeira Makone (1st respondent) and sons Charles Osoro Makone (2nd respondent) and Young Iteba Makone (applicant) were issued with a grant of probate of written Will. The grant has not been confirmed owing to disputes within the family.

2. The deceased’s estate comprised the following properties:-a.Nakuru Block 17/209;b.LR No 209/10611 Block 7, Flat No 5, Villa Franca;c.LR No 209/10611 Block 7 Flat No 1 Villa Franca;d.Belmont Estate, Kilimani under Certificate No 9 LR/2/125;e.Shares in Nyasiongo Tea Factory;f.Shares in Gianchore Tea Factory;g.Shares in Kenya Seed Company;h.Shares in Borabu Savings Sacco.

3. The present application is dated 4th March 2021 and was filed by the applicant under sections 45, 47 and 83 of the Law of Succession Act (Cap. 160) and rule 73 of the Probate and Administration Rulesseeking the following orders:-“2). That a bank account in the joint names of Bathseba Mokeira Makone, Charles Osoro Makone and Young Iteba Makone, the administrators of the estate be opened for purposes of receiving income from the following properties of the estate:-i.Rental income from Nakuru Block 17/209;ii.Rental income from LR No 209/10611 Block 7, Flat No 5, Villa Franca;iii.Rental income from LR No 209/10611 Block 7 Flat No 1 Villa Franca;iv.Rental income from Belmont Estate, Kilimani under certificate No 9 LR/2/125;v.Dividends from Nyasiongo Tea Factory;vi.Dividends from Gianchore Tea Factory;vii.Dividends from Kenya Seed Company;viii.Dividends from Borabu Savings Sacco.3)That Bathseba Mokeira Makone and Charles Osoro Makone do furnish this Honourable Court and the applicant herein with a full statement of accounts for all incomes received by the respondents from the following estate properties:-i.Rental income from Nakuru Block 17/209;ii.Rental income from LR No 209/10611 Block 7, Flat No 5, Villa Franca;iii.Rental income from LR No 209/10611 Block 7 Flat No 1 Villa Franca;iv.Rental income from Belmont Estate, Kilimani under certificate No 9 LR/2/125;v.Dividends from Nyasiongo Tea Factory;vi.Dividends from Gianchore Tea Factory;vii.Dividends from Kenya Seed Company; andviii.Dividends from Borabu Savings Sacco.”

4. The applicant’s case is that Nakuru Block 17/209 has a tenant Marie Athanasius who pays rent to the 2nd respondent; LR No 209/10611 Block 7 Flat No 5 and Flat No 1 in Villa Franca Estate have tenants who pay rent to either of the respondents; there is a tenant in Apartment C4, Belmont Estate Certificate No 9LR/2/125 who pays rent to either of the respondents; tea proceeds from Nyasiongo Tea Factory and Gianchore Tea Factory are paid into the account of the 1st respondent; and dividends from Kenya Seed Company are paid but he does not know to whom. He stated that estate property in the form of rent and dividends is being converted to the use of the respondents, and they do not account to the estate or beneficiaries. These are the reasons why he is seeking accounts and the opening of a joint bank account operated by the executors into which the estate proceeds shall be deposited.

5. The replying affidavit was sworn by the 1st respondent. Her case was that the rental income in question was so minimal, erratic and not enough and that it was not enough to cater for her rent, medication, transport, salaries for her helpers and her other basic requirements that she has to keep seeking for financial assistance from the 2nd respondent and her daughters Joyce Mogere, Norah Mageto and Maureen Kerati. She outlined the kind of medical requirements she has for every month which totals Kshs 1,735,990/=. The rental income was Kshs 84,625/= per month, from which she uses Kshs 62,500/= to pay her rent. Some of the houses are vacant, she stated. Lastly, the 1st respondent stated that the property over which accounts were sought were under statutory nominations and therefore funds from such properties do not form part of the estate of the deceased. She did not indicate which property were subject of such nomination, and did not indicate the kind of statutory nomination she was making reference to.

6. It is quite clear that whatever income, rental or dividends, that is accruing from the properties of the estate is being dealt with by the respondents, not only to the exclusion of the applicant but also in a manner that makes them think that it is their property. Whatever excuse they have, medial or some other needs, this is estate property which they cannot convert to their use. It is property they are required to gather and safeguard, and to ultimately distribute to the beneficiaries as commanded in the deceased’s Will. What they are doing, and I note that the 2nd respondent had no answer to the application, amounts to intermeddling with the deceased’s estate under section 45(1) of the Act. The unlawful use of the estate property is criminal.

7. Under sections 82 and 83 of the Act, the applicant and respondents, being executors of the estate of the deceased, have a fiduciary responsibility over the estate. They are subject to the supervision of the court in the manner they deal with the estate of the deceased. The court, on its own motion or on application of any beneficiary, can order the respondents to account for the way they have handled the estate, or applied its proceeds.

8. These are the reasons why I allow the application with costs, in terms that the applicant and the respondents shall within 30 days jointly open an account in a reputable bank into which all the rent and/or dividends, and other proceeds of the estate, shall be deposited every month or every time they become available. Secondly, within 60 days the respondents shall file and serve a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all their dealings therewith, including rents and dividends, up to the date of account. On service, the applicant or any beneficiary shall have 30 days to file a response to the account. Subsequent to that, the matter shall be mentioned on January 23, 2023 for further directions.

DATED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 5TH DAY OF OCTOBER 2022A.O. MUCHELULEJUDGE