[2025] KEHC 238 (KLR)

In re Estate of Philip Nzamba Kitonga (Deceased) (Succession Cause E1884 of 2021) [2025] KEHC 238 (KLR) (23 January 2025) (Ruling)

Neutral citation: [2025] KEHC 238 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Succession Cause E1884 of 2021

HK Chemitei, J

January 23, 2025

IN THE MATTER OF THE ESTATE OF PHILIP NZAMBA KITONGA (DECEASED)

Between

Kavengi Kitonga

1st Applicant

Eve Mukami Kitonga

2nd Applicant

and

James Ivia Kitonga

Respondent

Ruling

1. This ruling relates to the summons dated 20th August, 2024 filed by the Applicants, Kavengi Kitonga and Eve Mukami Kitonga, seeking for orders that:-(a)The Respondent, being the Executor of the Estate, be compelled to produce to court a full and accurate inventory of assets and liabilities of the estate of the Deceased from the date of appointment to date of issuance of this order within such time as shall be ordered by the court.(b)The Respondent, being the Executor of the Estate, be compelled to render a true, proper and comprehensive account of the administration of the estate of the Deceased including any funds he has collected and or received from the estate from the date of appointment to date within such time as shall be ordered by the court.(c)In the event of default, the Executor be deemed to have mismanaged the Estate of the Deceased, he be found in contempt of 1 and 2 above and he be removed as an Executor of the Estate.(d)Such further orders as the court shall deem just in the circumstances.(e)The Executor be compelled to pay the costs of this application personally.

2. The application is supported by affidavit sworn by Kavengi Kitonga on 20th August, 2024.

3. She avers inter alia that she is a beneficiary of the deceased’s estate by virtue of being his daughter and has the 2nd Applicant’s authority to swear this affidavit on her behalf. The grant of probate with written will was issued to the Respondent on 4th March, 2022 and confirmed on 31st July, 2023.

4. She averred that the Respondent, being the Executor of the deceased’s estate, has a legal obligation to provide information regarding the administration to the beneficiaries. She is entitled to receive her share of the estate as well as all information regarding the estate, which the Respondent has failed to do.

5. The Respondent has failed to provide information to the beneficiaries making it impossible to confirm with certainty, all the assets, their current state, the income derived from the various assets and the actual liabilities of the deceased’s estate. He has only provided piecemeal information on the deceased’s estate assets and liabilities with no supporting explanation.

6. Some of the opaqueness of his operation she deponed includes the opening of the deceased’s safe without the presence of the beneficiaries and thus nobody has any idea of what the contents were. She was however sure that the deceased use to keep money in the said safe.

7. The same applied to the funds used towards the construction of the deceased mausoleum. This was unilaterally done by the Respondent without any input of the Applicants.

8. The application is not opposed by the Respondent and no written submissions have been filed despite being served.

Analysis and Determination 9. I have gone through the application and address it as follows:-

10. In the case of Gideon Sitelu Konchellah vs. Julius Lekakeny Ole Sunkuli & 2 others [2018] eKLR the Supreme Court of Kenya held that:-“…as a court of law, we have a duty in principle to look at what the application is about and what it seeks. It is not automatic that for any unopposed application, the Court will as a matter of cause grant the sought orders. It behooves the Court to be satisfied that prima facie, with no objection, the application is meritorious and the prayers may be granted. The Court is under a duty to look at the application and without making any inferences on facts point out any points of law, such as any jurisdictional impediment, which might render the application a non-starter. We see no such jurisdictional issue in the application before us. Hence we have proceeded to consider the facts before us as against the jurisprudence for grant of stay orders set by this Court…”

11. In re Estate of Julius Mimano (Deceased) [2019] eKLR, Judge Musyoka stated as follows:-“The personal representative of a deceased person holds a unique position in law. The property of the dead person is vested in them by virtue of section 79 of the Law of Succession Act. The effect of section 79, read together with section 82 of the Act, is that the same puts the personal representative on the same footing with an owner of the property, in the sense that he exercises the powers that the legal owner of the property would have exercised were they alive, and suffered the same burden of duties and obligations over the property as the legal owner would have been under were they to be alive. Yet, the property, although vested in them by law, would not be theirs. Although the personal representative has legal title akin to that of an owner, the property does not belong to them. They only hold it in trust for the eventual beneficiaries thereof, that is those named in the will, in cases of testate succession, and those identified at confirmation of grant, in cases of intestacy. They would also be holding it for the benefit of creditors and any other persons who might have a valid claim against the estate. That would mean that they are trustees of the estate, and, indeed, the Trustee Act, Cap 167, Laws of Kenya, defines trustees to include executors and administrators. In the circumstances, therefore, the personal representative would stand in a fiduciary position so far as the property is concerned, and owes a duty to the beneficiaries to render an account to them of their handling of the property that they hold in trust for them. The duty to render accounts to beneficiaries arises from the trust created over the estate property when the same vests in the personal representative to hold on behalf of the beneficiaries.”

12. In light of the foregoing, I think it is imperative that the Respondent manages the deceased’s estate in a manner consistent with the law. He cannot be allowed to be capricious and or whimsical in the management of this estate. The powers donated to him by this court and more importantly by the deceased in the Will are not to serve his own interest but those of the beneficiaries to the estate.

13. From the paper trail of correspondences attached to the supporting affidavit I find that the Applicants have a point to raise against the Respondent. The period between the time the grant was issued and now was sufficient enough for him to distribute the estate unless there were reasons beyond his control.

14. Consequently, and based on my above observations I find that the application is merited and I order that:-(a)The Respondent within 30 days from the date herein does provide a true and accurate accounts to the court and Applicants of the estate from the date the grant was issued to him to date.(b)Within 60 days from the date herein execute the grant so that the respective beneficiaries can have control and or management of their bequest.(c)A report be filled within 60 days from the date herein indicating compliance with the above directives.(d)Costs in the cause.

DATED SIGNED AND DELIVERED AT NAIROBI VIA VIDEO LINK THIS 23RD DAY OF JANUARY 2025. H K CHEMITEIJUDGE