[2019] KEHC 1507 (KLR)
The court found that Mathew Tonado Okec had established a beneficial interest in the estate by providing a sale agreement and acknowledgment of payment for a portion of land purchased from the deceased. Accordingly, he was entitled to be enjoined as an interested party and included in the list of beneficiaries. The...
Source-derived case information.
- Citation
- [2019] KEHC 1507 (KLR)
- Parties
- Respondent: Zilpa Chepkemoi Bett; Respondent: Mary Sheila Onyango Oduor; Applicant: Mathew Tonado Okec; Respondent: Pauline Mary Makokha
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 106 of 2014
- Procedural Posture
- Probate and Administration / Ruling on Applications for Joinder and Asset Management Orders
- Outcome
- Partial grant and partial dismissal of applications.
- Judges
- KW Kiarie
- Legal Topics
- Succession Proceedings, Joinder of Interested Party, Sale of Land by Deceased, Administration of Estate, Asset Distribution, Powers of Administrator
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zilpa Chepkemoi Bett
Respondent
Mary Sheila Onyango Oduor
Respondent
Mathew Tonado Okec
Applicant
Pauline Mary Makokha
Respondent
Procedural Posture
Probate and Administration / Ruling on Applications for Joinder and Asset Management Orders
Legal Issues
- 1 Whether Mathew Tonado Okec should be enjoined as an interested party and beneficiary to the estate of the deceased.
- 2 Whether the co-administrator should be allowed to rent out estate property for personal upkeep and receive rent directly.
- 3 Whether the administrators should be compelled to compile and file a complete list of the deceased's assets for distribution.
Ratio Decidendi
The court found that Mathew Tonado Okec had established a beneficial interest in the estate by providing a sale agreement and acknowledgment of payment for a portion of land purchased from the deceased. Accordingly, he was entitled to be enjoined as an interested party and included in the list of beneficiaries. The court rejected the application by the co-administrator to rent out estate property for her personal upkeep and to have rent paid directly to her, holding that such an order would be improper where there are multiple administrators and that the risk of waste was not substantiated. The administrators were directed to compile a complete list of the deceased's assets within 60 days...
Court Disposition
Partial grant and partial dismissal of applications.
Orders
- Mathew Tonado Okec is enjoined as an interested party and included as a beneficiary of the estate.
- The application to allow the co-administrator to rent out estate property for personal upkeep and to receive rent directly is dismissed.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
PROBATE & ADMINISTRATION NO. 106 OF 2014
IN THE MATTER OF THE ESTATE OF:
RAPHAEL CHARLES MAKOKHA................................................................ DECEASED
BETWEEN
ZILPA CHEPKEMOI BETT..............................................PETITIONER/ RESPONDENT
AND
MARY SHEILA ONYANGO ODUOR................................. OBJECTOR/RESPONDENT
MATHEW TONADO OKEC....................................INTERESTED PARTY/APPLICANT
RULING
1. There are two applications which are still undetermined. On 25th September 2019 the parties agreed, through their counsel on record, to have them disposed together by way of written submissions. On 10th June 2019 Mr. Fwaya learned counsel for the first petitioner had not filed submissions and he requested an extension of 14 days to do so. The other counsel on record did not oppose. The application was allowed. By 24th June 2019 he had not filed the submissions and I therefore proceeded to write my ruling without the benefit of the said submissions.
2. By a notice of motion dated 8th October 2015, Mathew Tonado Okech interested party/applicant moved the court to be allowed to be enjoined as an interested party. His application was based on the following grounds:
a) That he has beneficial interest in the estate of the deceased herein;
b) That had purchased a portion of land from the deceased and took possession in his lifetime; and
c) That he has extensively developed the portion.
3. This application was opposed by Pauline M. Makokha, a co-administrator on the following grounds:
a) That she did not, together with her children, benefit from the said sale; and
b) That no documentation was provided to authenticate the said sale.
4. Contrary to the averment by Pauline M. Makokha, The applicant attached in his application a copy of sale agreement and a copy of acknowledgment of the last payment of Kshs.3,000, 000/= by the deceased. I am therefore satisfied that the application is merited. I make an order that Mathew Tonado Okech, a purchaser, be included in the list of beneficiaries of the estate of the deceased.
5. Pauline Mary Makokha, the co-administrator herein, moved the court by way of chamber summons under section 45 of the Law of Succession Act and Rule 49 and 73 of the Probate and Administration Rules for the following orders:
a) That the court issue an order directing the Registrar of lands to produce in court a Certified copy of land parcel L.R. No.2/241 NAIROBI GITANGA ROAD
b) That the Court issue an order allowing the applicant to rent out the land parcelL.R. No.2/241 NAIROBI GITANGA ROADfor her personal upkeep until the distribution of assets herein.
c) That the court to vary the orders of 8th October 2014 and instead direct that the rent from the estate be paid directly to the applicant.
6. The application was premised on the following grounds:
a) That the applicant has not been able to produce the title deed to the property; and
b) There is a danger of the property going to waste.
7. The issue of the property going to waste does not arise. The applicant and the co-administrator have a mandate to guard against any threat of encroachment to the estate by any person.
8. It would not be prudent for me to issue an order in favour of one administrator where there are more than one. This application does not appear to be made in good faith. I am making an order that the administrators herein to move with speed and distribute the estate so as these kind of “games” are eliminated altogether.
9. The administrators ought not to compete on the issue of which assets should form part of the deceased. The law is very clear. These are all the assets which were owned by the deceased herein whether located in Busia, Nairobi or elsewhere. I am therefore making an order for a complete compilation of the assets of the deceased and be available for distribution. The administrators herein are given 60 days to file in court the said list of assets for distribution.
DELIVERED and SIGNED at BUSIA this 20th day of November, 2019
KIARIE WAWERU KIARIE
JUDGE