[2020] KEHC 1174 (KLR)
The court held that the administrators have a non-delegable statutory duty to collect, gather, and secure all assets of the estate, including perfecting titles to assets not yet in the deceased's name. This duty cannot be transferred to third parties or resolved solely through ADR, as the estate vests in the...
Source-derived case information.
- Citation
- [2020] KEHC 1174 (KLR)
- Parties
- MISSING: Sananga Okonda (Deceased); Applicant: 2nd Administratrix; Respondent: Other Administrators
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 286 of 2009
- Procedural Posture
- Succession Cause / Ruling on Compliance With Asset Collection and Mediation Referral
- Outcome
- Matter referred to court-annexed mediation for identification and ascertainment of estate assets and amicable distribution.
- Judges
- DN Musyoka
- Legal Topics
- Succession Administration, Estate Asset Collection, Grant Confirmation, Probate Duties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sananga Okonda (Deceased)
MISSING
2nd Administratrix
Applicant
Other Administrators
Respondent
Procedural Posture
Succession Cause / Ruling on Compliance With Asset Collection and Mediation Referral
Legal Issues
- 1 Whether the administrators have complied with their statutory duty to collect and secure all assets of the estate before distribution.
- 2 Whether alternative dispute resolution (ADR) mechanisms can be used to resolve disputes among administrators regarding asset collection and identification.
- 3 Whether the court can confirm a grant and distribute assets without proof of ownership and proper identification of estate assets.
Ratio Decidendi
The court held that the administrators have a non-delegable statutory duty to collect, gather, and secure all assets of the estate, including perfecting titles to assets not yet in the deceased's name. This duty cannot be transferred to third parties or resolved solely through ADR, as the estate vests in the administrators by law. The court cannot confirm a grant or distribute assets unless there is clear proof of ownership and full disclosure of all estate assets. However, recognizing the constitutional encouragement of ADR, the court referred the matter to court-annexed mediation to assist the administrators in identifying and ascertaining the assets of the estate and to facilitate an...
Court Disposition
Matter referred to court-annexed mediation for identification and ascertainment of estate assets and amicable distribution.
Orders
- The matter is referred to court-annexed mediation to assist the administrators in coming up with a comprehensive list of the assets of the estate and to work out a fair and acceptable mode of distribution.
- The matter to be placed before the Mediation Deputy Registrar for the usual processes and formalities.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
SUCCESSION CAUSE NO. 286 OF 2009
IN THE MATTER OF THE ESTATE OF SANANGA OKONDA (DECEASED)
RULING
1. I delivered a ruling on 24th July 2020, directing the administrators to complete the exercise of collecting, gathering and getting all the assets of the estate, and to, particularly, perfect the titles of the assets that the deceased had allegedly bought but died before the said assets were transferred to his name.
2. The 2nd administratrix, in an effort to comply with the said directions, filed an affidavit, in which she registers the inability of all the three administrators to agree, and, therefore, suggesting that they could not comply with the directions given by the court. She prays that that matter be referred to alternative dispute resolution (ADR) mechanisms, so that the same can be resolved. The other administrators have not filed affidavits.
3. Administrators have a statutory duty to collect, gather and get in the assets of the estate. As said above, that includes having to perfect titles that were not conveyed to the name of the deceased as at the date of his death. That responsibility cannot be transferred to other persons, since the estate of the deceased vests in the administrators, by virtue of section 79 of the Law of Succession Act, Cap 160, Laws of Kenya. ADR cannot help the administrators on collecting, gathering and getting in the assets of the estate. Neither can it help in perfecting titles.
4. What this suggests to me is that the administrators herein do not either understand their role as such, or their duties, or that they are simply incompetent. An estate cannot be distributed before the assets have been properly identified and secured. The collection, gathering and getting in of the assets is in preparation of the exercise of distribution. The exercise precedes distribution, and it is premature to rush to distribution before the estate has been gathered. That is the very first duty of the administrators. Distribution is the last duty, which comes after the first duty has been discharged fully.
5. It must be made clear that the probate court distributes assets that are established as belonging to the deceased. Proof of ownership of property is through documents. For land, documents of ownership are issued by the government, either at national or county level. Certificates of ownerships must be availed, be they title deeds or certificates of official searches or letters from relevant authorities confirming that those assets exist and, according to their records, the same belong to the estate of the deceased. No court will distribute an asset whose authenticity and ownership is not established. Courts do not act blindly. The law is about certainty, and not vagueness, uncertainty and ambiguity.
6. A court does not confirm a grant merely because the administrators have invited the court to confirm it. It must be satisfied that all the persons beneficially entitled have been ascertained, the assets that ought to be shared amongst the said beneficiaries have been ascertained, and that there is proof that the said assets belong to the deceased. The court does not distribute assets that are not shown to belong to the estate of the deceased. That would be an exercise in futility, for the lands authorities would not transmit property, in accordance with the certificate of confirmation of grant, where the assets sought to be transmitted do not either belong to the deceased or belong to someone else or ownership thereof is unascertainable.
7. Since the Constitution encourages the courts to promote ADR, I shall give the administrators an opportunity to try to use mediation to identify or ascertain the assets of the estate, with a view to collect, gather and get them in. The court cannot distribute the estate in the absence of full disclosure or ascertainment of the assets by the administrators
8. It would be in the best interests of the parties hereto that the matter be hereby referred to court annexed mediation, with a view to assist the administrators come up with a comprehensive list of the assets of the estate, and to amicably work out a mode of distribution, which is fair and acceptable to all affected. Let the matter be placed before the Medication Deputy Registrar for the usual processes and formalities.
DELIVERED DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS4TH DAY OF DECEMBER 2020
W MUSYOKA
JUDGE