[2025] KEHC 4187 (KLR)

In re Estate of Paul Maingi Wamae (Deceased) (Succession Cause 160 of 2017) [2025] KEHC 4187 (KLR) (Family) (3 April 2025) (Ruling)

Neutral citation: [2025] KEHC 4187 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 160 of 2017

HK Chemitei, J

April 3, 2025

IN THE MATTER OF THE ESTATE OF PAUL MAINGI WAMAE (DECEASED)

Between

Daniel Thige Wamae

Applicant

and

Theresa Muthoni Wamae

1st Respondent

Dr Joshua Wamugo Wamae

2nd Respondent

Francis Kinungi Wamae

3rd Respondent

Ruling

1. This ruling relates to the summons for production of accounts dated 5th May, 2022 and filed by Francis Kinungi Wamae and summons for revocation of grant dated 11th January, 2024 filed by Daniel Thige Wamae.

2. The summons for production of accounts dated 5th May, 2022 seeks for ORDERS THAT:-1)This Honourable Court be pleased to compel the former administrators to render accounts, either jointly or severally, of their administration of the estate for the duration that they have been administrators, covering an inventory of the assets and liabilities of the estate, the revenue collected and the expenditure incurred.2)The account referred to in (1) above be in affidavit form and supported by appropriate documentation.3)The costs of this application be paid out of the estate.

3. The application is based on the grounds thereof and supported by affidavit sworn by Francis Kinungi Wamae on 5th May, 2022.

4. He avers inter alia that he is the deceased’s son, who passed away on May 14th May, 2016. On 25th July, 2017, letters of administration intestate were granted to Theresa Muthoni and Dr. Joseph Wamugo Wamae. Through an application dated 9th July, 2018, he objected to the grant and requested, among other things, to be included as an administrator. The matter was referred to mediation under Mediation Case No. 143 of 2021, resulting in a mediation report being adopted by the court.

5. Consequently, a certificate of confirmation of grant was issued on 2nd February, 2022, appointing him, Theresa Muthoni Wamae and Francis Kinungi Wamae as administrators, thereby removing Dr. Wamugo Wamae from the role. Before assuming his responsibilities as an administrator, his advocates on record requested the joint administrators’ advocates to provide a full and accurate inventory of the deceased’s estate’s assets and liabilities to help him understand the estate’s current status. However, this request has not been fulfilled.

6. That on 20th April, 2022, Dr. Wamugo Wamae accused him of intermeddling in the estate's affairs due to his new role as an administrator. In response, his advocates emphasized that he had been duly appointed through the certificate of confirmation of grant issued on 2nd February, 2022, and reiterated the necessity of providing a comprehensive account of the estate’s assets and liabilities. Despite repeated requests, Dr. Wamugo Wamae has refused to comply and has raised doubts about the administrators' integrity and the management of the estate.

7. Concerned by the administrators’ continued failure to account, he believes he cannot effectively fulfill his duties and the estate is at risk of deterioration, potentially leaving little for the beneficiaries. Administrators have a legal obligation to provide a full and accurate inventory of the estate and the court has the authority to compel compliance with this duty.

8. The application is opposed vide replying affidavit sworn by Theresa Muthoni Wamae on 24th October, 2022.

9. She avers inter alia that she is among the administrators of the deceased’s estate. A mediation report dated 10th January, 2022, was presented to the court on 2nd February, 2022, after which a certificate of confirmation of grant was mistakenly issued to her and Francis Kinungi Wamae. Francis Kinungi Wamae wrongfully and fraudulently appointed himself as an administrator. As a result, an application dated 25th April, 2022, has been filed in court to correct this error and reinstate Dr. Joshua Wamugo Wamae as her co-administrator.

10. That all estate assets have been clearly identified, recorded in the proceedings, and presented to all beneficiaries, including the applicant, in multiple meetings. Moreover, the applicant has been receiving a monthly allowance of Kshs. 50,000/= for the past 4 years and is therefore well aware of the estate's financial status. As the legally appointed administrators, they have engaged auditors to prepare audited financial accounts, which will be shared with the applicant and other beneficiaries once completed and approved in a meeting with all estate beneficiaries

11. The applicant has filed written submissions dated 30th April, 2024 placing reliance on the following:-a.In re Estate of James Simon Bellhouse (Deceased) [2019] eKLR where the court pronounced itself as follows:“The requirement to render accounts is a statutory duty. Under Section 83 (h), any interested party may apply to the Court for an order that a personal representative renders account. The Court itself may of its own motion require the production of accounts of all dealings with the estate. It must be noted that even personal representatives whose grants are revoked are invariably required by the Court to render accounts of all their dealings with the estate during their tenure, the revocation notwithstanding. In re Estate of Francis Waita Mbaki (Deceased) [2018] eKLR, Muriithi J. upon revoking a grant further ordered as follows: “The respondents herein, as the outgoing administrators to be replaced by the new administrators to be appointed as above, shall within three months (90) days furnish to the parties and to Court a full and accurate account of their dealings with the estate property from the date of appointment to the date of account.”b.In re Estate of the Late Mwaura Makuro (Deceased) [2021] eKLR where the court pronounced itself as follows:-“The production of accounts is a key component of the administration process of a deceased person’s estate. From the moment a grant is issued to a personal representative of a deceased person, the grant holder becomes responsible to the Court in the carrying out of the duties of administrator.Accounts are an accountability tool that will tell the Court whether the administrator has been faithful to the role entrusted to him or her. When an administrator fails to file accounts as required, questions as to the integrity of the process are bound to arise as in the present case.The law has empowered the Court on either of its own motion ot on the application of any interested party in the estate, to order an administrator to produce a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings therewith up to the date of account.”c.Cecilia Karuru Ngayu vs Barclays Bank of Kenya & another (2016) eKLR where it was decided as follows:-“To my mind, in determining the issue of costs, the court is entitled to look at inter alia(i)the conduct of the parties,(ii)the subject of litigation,(iii)the circumstances which led to the institution of the proceedings,(iv)the events which eventually led to their termination,(v)the stage at which the proceedings were terminated,(vi)the manner in which they were terminated…”

12. The summons for revocation of grant dated 11th January, 2024 seeks for orders that:-1. The Certificate of Confirmation of Grant issued to Theresa Muthoni Wamae and Francis Kinungu Wamae on 2nd day of February, 2022 be revoked.2. Theresa Muthoni Wamae and Dr. Joshua Wamugo Wamae be ordered to apply for confirmation of the grant of Letters of Administration issued to them by the Honourable Court on the 25th day of July, 2017. 3.The said confirmation of grant be in terms of the settlement and mediation agreement dated 10th January, 2022 and agreed upon by all the beneficiaries.4. The honourable court do issue any other such orders as it may deem fit to grant.5. Costs of this application be provided for.

13. The application is based on the grounds thereof and supported by affidavit and further affidavit sworn by Daniel Thige Wamae on 11th January, 2024 and 4th April, 2024 respectively and replying affidavits sworn by Theresa Muthoni Wamae on 11th March, 2024.

14. Daniel Thige Wamae avers inter alia that the deceased passed away on 14th May, 2016, and on 25th July, 2017, this honorable court granted letters of administration intestate to Theresa Muthoni Wamae and Dr. Joshua Wamugo Wamae. Before the grant could be confirmed, the parties agreed to undergo mediation, with M/S A. Alibhai appointed as the mediator under P & A Mediation Case No. 143 of 2021.

15. As the deceased’s son, he deponed, he was present throughout the mediation process, which was attended by all beneficiaries, and a mediation settlement agreement was signed on 10th April, 2022. He had always understood that the administrators, Theresa Muthoni Wamae and Dr. Joshua Wamugo Wamae, would proceed with the grant confirmation in line with the mediation agreement.

16. However, in December 2023, upon reviewing a ruling by Hon. Lady Justice M. Odero, he discovered that the administrators had failed to enforce the mediation agreement. Instead, they acted fraudulently, concealed material facts and misled the court in the following ways: A review of the court file revealed that his brother, Francis Kinungi, had been appointed as an administrator without his consent, despite having equal priority as a beneficiary. Dr. Joshua Wamugo Wamae was fraudulently removed as an administrator without the consent of other beneficiaries or a hearing in court.

17. That the distribution schedule was based on a mediation report by Mr. Nathan Mukhwana, dated 1st December, 2021. He and the other beneficiaries never appeared before Mr. Nathan Mukhwana for mediation or any other purpose. To clarify, the only valid mediation settlement agreement is the one conducted by A. Alibhai on 10th January, 2022.

18. He, therefore, requests the court to revoke the confirmed grant issued on 2nd February, 2022, as it was based on a forged mediation report. Furthermore, neither he nor the other beneficiaries consented to the removal of Dr. Joshua Wamugo Wamae as an administrator or the appointment of Francis Kinungi Wamae in his place. He is also prepared to be appointed as an administrator to ensure the enforcement of the rightful mediation settlement agreement.

19. He went on to state that Francis Kinungi Wamae has acknowledged filing the summons dated 9th July, 2018, in which he sought to be appointed as an administrator. However and firstly, the application was never served upon him as a beneficiary, nor to any other beneficiaries or administrators of the deceased’s estate. As a beneficiary with the same level of priority as Francis Kinungi Wamae — who is his brother — he was entitled to be heard regarding the suitability of Francis' appointment as an administrator.

20. However, the court records do not indicate when the application was heard. While Francis Kinungi Wamae asserts that his application merely sought his inclusion as an administrator, the certificate of confirmation of grant dated 2nd February, 2022, shows that Dr. Joshua Wamugo Wamae was removed as an administrator and replaced by Francis Kinungi Wamae, without affording him (the objector) an opportunity to be heard.

21. That had he been properly served with the application regarding the appointment or replacement of an administrator, he would have strongly opposed it, as he believes Francis Kinungi Wamae is highly unsuitable and unfit for the role due to the fact that he makes unilateral decisions without consulting other beneficiaries or administrators, as evidenced in his replying affidavit and that he has an aggressive and violent behavior – He has a short temper and has exhibited violent tendencies, even towards family members.

22. A good example he went on was when he insulted and threatened their own mother, Theresa Muthoni Wamae, on multiple occasions using offensive language. On the night of 25th March, 2019, he physically assaulted and beat their mother at her matrimonial home despite her being over 70 years old. A serious incident was only averted due to timely intervention. The assault was reported at Muthaiga Police Station under OB No. 75/25/3/19, but their mother, out of fear and intimidation from Francis, refrained from pursuing legal action.

23. As a result, she now fears for her personal safety, making it impossible to work alongside Francis as co-administrators. Mismanagement and financial misconduct – Francis Kinungi Wamae has been misappropriating estate funds through threats and intimidation. As of December 2023, he had allocated himself Kshs.6,511,650/=, drawing Kshs.500,000/= per month from 8th January, 2017 to 31st December, 2023.

24. He also has a disruptive behavior where he repeatedly visited the estate’s rental properties, causing disturbances by yelling, hurling insults at tenants and forcefully demanding rent payments.

25. According to him the issue of estate distribution was resolved through mediation and all beneficiaries accepted the mediation report by A. Alibhai, dated 10th January, 2022, which was filed in court on 20th January, 2022. At no point during this process was the issue of adding or replacing administrators discussed.

26. To this day, it remains unclear how Francis Kinungi Wamae was appointed as an administrator. Given these circumstances, the certificate of confirmation of grant, which refers to a mediation report by Mr. Nathan Mukhwana and recognizes Francis Kinungi Wamae as an administrator, should be revoked immediately and a new certificate should be issued, accurately reflecting the court records.

27. The application is opposed vide Francis Kinungi Wamae on 18th March, 2024. He avers inter alia that the applicant is selectively presenting the events leading up to the court-annexed mediation and the current deadlock.

28. The respondent gave a chronology and summary of events namely that Theresa Muthoni Wamae and Dr. Joshua Wamugo Wamae filed the initial petition on 12th January, 2017, seeking letters of administration intestate. The court granted these letters on 25th July, 2017. However, after a significant delay with no further action from the petitioners or joint administrators regarding the probate process, on 11th July, 2018 - nearly a year after the grant – he filed summons dated 9th July, 2018, seeking to amend the letters of administration. His request was based on the administrators’ failure to initiate the confirmation of the grant. Their inaction compelled him to step in to ensure the estate was distributed efficiently.

29. That upon receiving his application, the administrators were prompted into action and hurriedly filed their own summons for confirmation of grant in an attempt to counter his request. It wasn’t until 5th April, 2019 - 620 days after the initial grant - that Theresa Muthoni Wamae and Dr. Joshua Wamugo Wamae submitted their summons dated 4th April, 2019. In their application, Theresa Muthoni Wamae, with the cooperation of Dr. Joshua Wamae, attempted to allocate the majority of the estate to herself, leaving only two plots for him. Notably, the current applicant, Daniel Thige Wamae, had consented to this proposed distribution, despite being a direct beneficiary as the deceased’s son.

30. He responded by filing a protest on 29th April, 2019, objecting to the proposed distribution on the grounds that it excluded several direct beneficiaries, including Daniel Thige Wamae.

31. In light of his application and protest, the court deemed the issues concerning administration and distribution significant enough to be addressed through mediation and referred the case to court-annexed mediation. The mediation was overseen by Hon. Mediator Arshad Shamsudin Habib Alibhai, to whom both parties submitted case summaries. The administrators' advocates argued that the dispute primarily concerned the distribution of shares in Panmat Holdings. However, he maintained that the matter involved both administration and distribution, as the appointed administrators had failed to act, forged his signature in the application for letters of administration, delayed the succession process, misused estate assets while sidelining other beneficiaries and neglected their duty to provide proper accounts. This clearly demonstrated that administration was a crucial issue, contrary to the narrative the former administrators were attempting to present.

32. That throughout the mediation, Dr. Joshua Wamugo Wamae never attended a single session. The mediator submitted a report dated 1st December, 2021, summarizing that the case revolved around the administration and distribution of the estate of the late Paul Maingi Wamae, who passed away on 14th March, 2016. His role as his son and rightful beneficiary was affirmed.

33. The applicant has filed written submissions dated 19th April, 2024 placing reliance on the following:-a.Lazarus Estate Ltd vs. Beasley (1956) QB 702 where it was stated as follows:-“No court in this land will allow a person to keep an advantage he has obtained through fraud. No judgment of the court, no order of minister can be allowed to stand if it has been obtained by fraud. For this unravels it, vitiates judgment, contracts and all other transactions.”

34. The 1st and 2nd Respondents have filed written submissions dated 2nd September, 2024 placing reliance on the following:-a.Succession Cause 217 of 20023: In re estate of David William Kigumi Kimemia (Deceased) [2021] eKLR where it was highlighted as follows:“29. The first principle is that an allegation of fraud must be specifically pleaded and proved. In Vijay Morjaria v Nansingh Darbar & Another [2000] eKLR, where Tunoi, JA (as he then was) stated as follows:‘It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course be set out, and then it should be stated that these acts were done fraudulently.It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and that it is not allowable to leave fraud to inferred from facts.”“32. The second principal is that the burden of proof of an allegation of fraud is on the person alleging. In Ndolo v Ndolo [2008] 1KLR (G & F (742 the court stated that:“We start by saying that it was the Respondent who was alleging that the will was a forgery and the burden of proof that allegation lay squarely on him… In cases where fraud is alleged, it is not enough to simply infer fraud from the facts.34. In the case of Urmilla w/o Mahendra Shah v Barclays Bank International Ltd & Another [1979] eKLR, the court of appeal took the view that the onus to prove fraud in a matter is on the party who alleges it.In Moses Parantai & Peris Wanjiku Mukuru suing as the legal representatives of the estate of Sospteter Mukuru Mbeere (deceased) v Stephen Njoroge Macharia [2020] eKLR, the court of appeal observed as follows:“In the instant case, the appellants needed to not only plead and particularize the fraud, but also lay a basis by way of credible evidence upon which the court would make a finding that indeed there was fraud in transaction leading to the transfer and registration of the suit land in the name of Janet all the way to the respondent…”35. The third principal is that the burden of proof of allegation of fraud is higher than that required in civil cases that of proof on a balance of probabilities; and lower than that required in criminal case that is beyond reasonable doubt. Ndolo v Ndolo [2008] 1KLR (G & F) 742 the court stated that:“… since the respondent was making serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; but the burden of proof on the respondent was certainly not one beyond a reasonable doubt as in criminal cases…”b.Re Estate of BM (Deceased) [2019] eKLR where the court held as follows:“We would opine that a mediation settlement agreement would, upon adoption, be treated as a consent order, in which case the order would only be set aside on grounds which would justify the setting aside of a contract (Flora N. Wasike -v- Destimo Wamboko [1982 – 88] IKAR 625). The grounds would include fraud, collusion, illegality, mistake, misrepresentation or if the contract is against public policy…”

35. The 3rd respondent, Francis Kinungi Wamae, has filed written submissions dated 7th June, 2024 placing reliance on the following:-a.Yalwala 7 3 Others (Sued in their capacity as Board of Trustees of Chavakali Yearly Meeting of Friends (Quakers) v Kadenge & 3 Others (Environment & Land case 4 of 2021) [2022] KEELC 2510 (KLR) (21 July 2022) (Judgment) where it was highlighted as follows:“On the standard of proof required for claims based on fraud, courts have held that the standard of proof is higher than in the ordinary civil cases. In Koinange & 13 others vs Charles Karuga Koinange 1986 KLR at page 23 the court held that, “When fraud is alleged by the Plaintiffs the onus is on the Plaintiffs to discharge the burden of proof. Allegations of fraud must be strictly proved, although the standard of proof may not be so heavy as to require proof beyond a reasonable doubt, something more than a balance of probabilities is required.”Also, in the case of Kinyanjui Kamau v George Kamau [2015[ eKLR the court dismissed the appeal as it was not demonstrated that the appellants had proved fraud to the required degree and stated that, “It is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo vs Ndolo [2008] 1KLR (G & F) 742 wherein the court stated that, “… we start by saying that it was the Respondent who was alleging that the will was a forgery and the burden to prove the allegation lay squarely on him. Since the Respondent was making a serious charge of forgery, the standard of proof required in ordinary civil cases, namely proof upon a balance of probabilities; but the burden of proof on the Respondent was certainly not one beyond a reasonable doubt as criminal cases…” In cases where fraud is alleged it is not enough to simply infer fraud from the facts.”b.Urmila w/o Mahendra Shah v Barclays Bank International Ltd & Another [1979] eKLR where it was held that, “To establish fraud, a higher standard of proof is required, approaching proof beyond reasonable doubt.”c.Kinyanjui Kamau v George Kamau [2015] eKLR where it was held as follows:“We have considered the entire record of appeal as well as the rival submission of counsel. It is immediately apparent to us that the appellant never gave any evidence that would prove that the deceased was holding his share of the property in trust for the appellant. That means that the appellant’s suit was only based on the allegations of fraud against the respondent and his brother. It is trite law that any allegations of fraud must be pleaded and strictly proved…”d.Chege v Twiga Lodge Limited & 2 Others [2022] KECA 429 where it was held as follows:“The requirement in proving fraud… are firstly, that fraud should not only be specifically pleaded and particularized, but that its basis should also be laid by way of credible evidence upon which the court can make a finding that indeed there was fraud in the transaction… Secondly that fraud, being a quasi – criminal charge, must also be proved on a standard which though below beyond reasonable…. Doubt, is above a balance of probabilities.”e.Razaro Muriuki M’Thuranira v Michael Kiugu M’Thuranira [2016] eKLR where the court elucidated as follows:“Discretion to appoint administrators: The parties cannot agree on the person or persons to be appointed as administrator of the estate of the deceased. I will therefore fall back to final discretion of the court and appoint the person or persons to be administrator of the estate of the deceased. Like all other discretions, the discretion of the court to appoint administrators of the intestate estate must not be exercised whimsically but upon defined legal principles and in accordance with the circumstances of each case. In this case, the general guide of the exercise of discretion is provided in Section 66 and Part V of the Law of Succession Act: Accordingly, the important factors to consider in the exercise of this discretion are: (1) the order of preference; and or (2) right and degree of entitlement to inheritance; and (3) the best interest of all the parties concerned taking the circumstances of the case into account.”f.Astute Africa Investments & Holding v Spire Bank Kenya Limited & another [2018] eKLR where it was highlighted as follows:“The question of the legality of the charge was not raised in the plaint or in the notice of motion dated 9th November, 2017. To raise it by way of the supplementary affidavit amounted to raising fresh or different issues at a very late stage. The general purpose of a supplementary affidavit is to allow the plaintiff/ applicant to respond to the 1st Defendant’s replying affidavit or in the alternative to buttress and/ or clarify the averments in the supporting affidavit. The Plaintiff/Applicant cannot use it supplementary affidavit as a means to introduce new facts or raise issues that were not at the core of the suit or the application. Raising this issue at such a late stage means that the 1st Defendant had no opportunity to respond to the same to their prejudice. For this reason, I am inclined to disregard this issue of the legality of the charge.”g.Cecilia Karuru Ngayu vs Barclays Bank of Kenya & another (2016) eKLR where it was stated as follows:-“To my mind, in determining the issue of costs, the court is entitled to look inter alia (i) the conduct of the parties, (ii) the subject of litigation, (iii) the circumstances which led to the institution of the proceedings, (iv) the events which led to their termination, (v) the stage at which the proceedings were terminated, (vi) the manner in which they were terminated…”

Analysis and Determination 36. I have gone through the applications, responses thereto and the rival submissions filed by the parties, and address them as follows:

37. First of all, and as rightly submitted by Theresa Wamae I do not find any evidence of how Dr Joshua Wamugo Wamae was removed as an administrator. Although the court allowed Francis Wamae to come on board whether the rest were aware or not the removal of Dr Wamae was erroneous.

38. There is no evidence that he renounced his position as an administrator or at all. To this end therefore I find that any removal was unprocedural and unlawful.

39. What of Francis position? It appears that the court permitted him to be an administrator together with his mother. Daniel has argued that he and the rest of the beneficiaries were never consulted. It appears in my view that there was no evidence of service upon the rest of the beneficiaries hence their lack of consent.

40. There is also allegations that Francis has kept on harassing the mother/widow as evidenced by the police OB. This ought to be taken care of by the relevant criminal agencies. This court for now may not be of much help.

41. The issue of one Nathan Mukwhwana I think has been overblown by the parties and the explanation that it was a typing error should be sufficient. I state so for the reason that the mediation settlement by A Alibhai dated 10th January 2022 is solid and has not been tempered with it any way. No evidence of any review appeal or any challenge has been mounted against it or at all. The only addition which was erroneous was that of the fictitious Mukwhwana.

42. In the premises I find that the grant ought to be confirmed in the manner directed by the mediator and adopted by this court. Anything else is simply a delay in concluding the estate.

43. On the issue of accounts, I think it is imperative that the administrators, Theresa and Dr Wamae should present the accounts as at the time they took over this estate to date. In her affidavit Theresa asserted that they were in a position to provide the same.

44. These accounts will obviously include any drawings made by Francis and any other expenses in the estate.

45. In conclusion and for the interest of justice I find that both Daniel and Francis being the sons of the deceased shall be administrators of the estate. Dr Wamae as well shall come back and take his place in the cause.

46. Since the estate is as good as determined by virtue of the mediation report the administrators should seek to have the new grant confirmed taking into consideration the said report.

47. The two applications are hereby determined as hereunder:-(a)Theresa Muthoni Wamae, Francis Kinungi Wamae, Daniel Thige Wamae and Dr Joshua Wamugo Wamae are hereby appointed as joint administrators of the estate herein and any other grant earlier issued is hereby revoked.(b)The joint administrators shall within 45 days from the date herein apply for the grant to be confirmed taking into consideration the findings of the mediation settlement by A Allibhai dated 10th January 2022. (c)Theresa Muthoni Wamae and Dr Joshua Wamugo Wamae shall provide to this court the estates accounts from the period they acted as joint administrators and the same be filed with the Deputy Registrar of this court within 90 days from the date herein.(d)Costs of both applications in the cause.

DATED SIGNED AND DELIVERED AT NAIROBI VIA VIDEO LINK THIS 3RD DAY OF APRIL, 2025. H K CHEMITEIJUDGE