[2020] KEHC 6661 (KLR)
The court found that although the administration of the estate had been delayed for about ten years, the difficulties cited by the 2nd petitioner, including the need to set aside burial sites and the death of the 1st petitioner, contributed to the delay. The 2nd petitioner's willingness to relinquish administrative...
Source-derived case information.
- Citation
- [2020] KEHC 6661 (KLR)
- Parties
- Applicant: Michael Mutunga Maingi; Applicant: Anthony Maingi; Applicant: Peter Maingi; Applicant: Rose Nzisa; Applicant: Jane Ndunge; Respondent: Patrick Kivuva Maingi; Respondent: Francis Ndolo Maingi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1515 of 2009
- Procedural Posture
- Succession Cause / Ruling on Application for Revocation and Appointment of Administrator
- Outcome
- Application allowed in part; grant rectified to appoint 1st applicant as co-administrator; no order as to costs.
- Judges
- AO Muchelule
- Legal Topics
- Grant Revocation, Estate Administration, Appointment of Administrator
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Mutunga Maingi
Applicant
Anthony Maingi
Applicant
Peter Maingi
Applicant
Rose Nzisa
Applicant
Jane Ndunge
Applicant
Patrick Kivuva Maingi
Respondent
Francis Ndolo Maingi
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Revocation and Appointment of Administrator
Legal Issues
- 1 Whether the confirmed grant should be revoked due to alleged failure by the petitioners to administer and distribute the estate as required.
- 2 Whether new administrators should be appointed to replace or assist the existing administrator(s).
Ratio Decidendi
The court found that although the administration of the estate had been delayed for about ten years, the difficulties cited by the 2nd petitioner, including the need to set aside burial sites and the death of the 1st petitioner, contributed to the delay. The 2nd petitioner's willingness to relinquish administrative duties indicated good faith, but he remained responsible for the estate until properly relieved by the court. The court determined that revocation of the grant was not warranted; instead, it was just to rectify the grant by appointing the 1st applicant as a co-administrator to assist in completing the administration. This approach balanced the interests of justice, ensured...
Court Disposition
Application allowed in part; grant rectified to appoint 1st applicant as co-administrator; no order as to costs.
Orders
- The 1st applicant, Michael Mutunga Maingi, is appointed as the 2nd administrator to assist the 2nd petitioner in the administration of the estate.
- The grant is rectified to reflect the 1st applicant as a co-administrator.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
SUCCESSION CAUSE NO. 1515 OF 2009
IN THE MATTER OF THE ESTATE OF PAUL MAINGI KATHUKYA- (DECEASED)
MICHAEL MUTUNGA MAINGI....................................... 1ST APPLICANT
ANTHONY MAINGI......................................................... 2ND APPLICANT
PETER MAINGI................................................................. 3RD APPLICANT
ROSE NZISA....................................................................... 4TH APPLICANT
JANE NDUNGE................................................................. 5TH APPLICANT
VERSUS
PATRICK KIVUVA MAINGI.....................1ST PETITIONER (DECEASED)
FRANCIS NDOLO MAINGI...............................................2ND PETITIONER
RULING
1. The deceased Paul Maingi Kathukya died intestate on 17th May 2008. He left two houses, each with several children. His estate comprised Donyo Subuk/Komorock Block 1/13297; Kangundo/ Mbilini/1460; Kangundo/Kikambuani/944; Kangundo/ Kikambuani/1242; Kyumbi Trading Centre/58; Katelembo Athiani Muputi Farming Ranch Society Shamba 3508, and 3512; Donyo Subuk/Komarock Block 1/13271, 13284, 13279, 13276 and 13293; and Donyo Sabuk Komarock Block 1/466. The petitioners Patrick Kivuva Maingi and Francis Ndolo Maingi are some of the sons of the deceased. With the permission of the family, they petitioned for, and obtained, a grant. The grant was issued to them on 2nd December 2009. The grant was confirmed on 25th January 2011 and a certificate issued showing how the estate was to be shared to the beneficiaries.
2. On 18th April 2019 the applicants Michael Mutunga Maingi, Anthony Maingi, Peter Maingi, Rose Nzisa and Janet Ndunge (all being some of the children of the deceased) applied to have the grant revoked and, in the place of the petitioners, the 1st and 2nd applicants be appointed to administer the estate. Their case was that, since the grant was confirmed, the petitioners had failed to transmit Kangundo/Mbilini/1460, Kangundo/Kikambuani 944 and Kangundo/Kikambuani/1242 to the respective beneficiaries. Secondly, the deceased had several plots in Komarock Ranching and Farming Cooperative Society Limited which the petitioners had not managed to their satisfaction; that they had not taken the initiative to represent the rightful beneficiaries to the society; and had not facilitated the distribution of 2 ½ acres from the Society to the beneficiaries.
3. The 1st petitioner had since died leaving only the 2nd petitioner. The response of the 2nd petitioner was that on parcels 944, 1460 and 1242 (above) were graves of the deceased, his two wives and other members of the family. It had been agreed, he stated, that the parcels should be subdivided into portions after setting aside the burial places and then be shared. The process was awaiting the mobilisation of resources. This had been complicated by the death of the 1st petitioner on 5th June 2019.
4. Regarding the Society, the 2nd petitioner stated that the share of the deceased was allocated to one family member, just like another share had been allocated to the 1st applicant. This was by agreement of the beneficiaries, he stated. The individual family members of the deceased were offered a chance to each pay Kshs.50,000/= for a share in the Society. These new shares became individual shares, and not part of the estate.
5. The 2nd petitioner denied that he had been indolent, or that he had failed to expeditiously or prudently administer the estate of the deceased. He then added:-
“16. THAT I would like to state categorically that I would willingly relinquish Administrative duties to any family members who will be nominated by the family and appointed by the court.”
6. I agree that the grant was confirmed a long time ago, about 10 years ago. The petitioners ought to have completed the distribution and accounted to the beneficiaries and the court. However, the difficulties raised by the 2nd petitioner have delayed the administration of the estate. The death of the 1st petitioner did not make matters any easy. Infact, upon the death of the 1st petitioner the parties ought to have moved to replace him, or have the 2nd petitioner proceed alone with the administration.
7. I consider that the 2nd petitioner’s offer to relinquish the administration of the estate to any member(s) the family can chose is an indication that he has always acted in good faith. However, he has to know that the grant made him responsible for the administration of the estate, and accounting for the administration. He cannot easily opt out, however difficult the circumstances may be.
8. In the wider interests of justice, I direct that the 1st applicant Michael Mutunga Maingi be appointed as the 2nd administrator to help the 2nd petitioner in the remaining administration of the estate of the deceased. The grant shall not be revoked, but rectified to reflect the 1st applicant as a co-administrator. In that limited sense, the application is allowed. I make no order as to costs.
DATED and DELIVERED electronically, following consent of the parties, at NAIROBI this 8TH day of APRIL 2020.
A.O. MUCHELULE
JUDGE