[2022] KEHC 15400 (KLR)

In re Estate of Stanslaus Dalmas Anyango (Deceased) (Succession Cause 1 of 2022) [2022] KEHC 15400 (KLR) (14 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15400 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Succession Cause 1 of 2022

KW Kiarie, J

November 14, 2022

Between

Allan Samuel Otieno & 10 others

Applicant

and

Tony Nick Otieno & 4 others

Respondent

Ruling

1. Allan Samuel Otieno & 10 others, the applicants herein, moved the court by summons for revocation and rectification of grant dated 20th April, 2022 under sections 47, 74 and 76 of the Law of Succession Act, Rules 43(1) , 44, 49, 69 and 73 of Probate and Administration Rules. They are seeking the following orders:a.That this honorable court be pleased to remove the 1st respondent, Tony Nick Otieno as an administrator of the estate of Stanslaus Dalmas Anyango.b.That the grant of letter of administration intestate to the deceased’s estate which was made to Samuel Allan Otieno, Tony Nick Otieno, Gaudencia Otieno and Shenaz Atieno on August 4, 2020 be revoked and fresh Grant of Letters of Administration Intestate be issued to Samuel Allan Otieno, Gaudencia Otieno and Shenaz Atieno.c.That this honourable court do cite Tony Nick Otieno for contempt of court for blatantly disregarding the orders issued by the Honourable court on March 25, 2021 and July 14, 2021. d.That this honourable court do order that the said Tony Nick Otieno be committed to civil jail for a period of six (6) months.e.That this honourable court to order the 1st respondent to purge the contempt by compelling him to deposit all the rents due to the estate which he has appropriated for himself since the Honorable court ordered that the money be deposited in the stated account on July 14, 2021. f.That this honourable court be pleased to issue such further orders and directions it may deem necessary and just.g.That the costs of this application be in the cause.

2. The application was premised on the following grounds:a.That the administration of the estate of Stanslaus Dalmas Anyango has since ground to a halt since the 1st respondent has been evasive, malicious and has willfully failed to co-operate with the rest of the administrators in the administration of the estate.b.That since the genesis of this succession cause in the Magistrate’s court, the 1st respondent/2nd administrator has continuously acted in disregard of the rule of law as he has been and continues to be in defiance of court orders.c.That despite there being court orders issued on March 25, 2021 and July 14, 2021 directing the tenants of LR.No.11/556 Eldoret Municipality to deposit their rents to KCB Bank account No.1286462452 on or before the 5th of every month the 1st respondent/2nd administrator has continued to collect the rent and appropriate the same to the detriment of the estate.d.That 1st respondent has failed to proceed diligently with the administration of the estate by cooperating with the rest of the administrators.e.That the 1st respondent has continued to operate in blatant disregard of the orders issued on March 25, 2021 and 14th July by the honorable court hence he is in total contempt of the said orders.f.That if the orders sought herein are not granted the applicant and indeed the estate herein will suffer greatly.g.That it is in the interest of justice that the prayers herein are granted.

3. The respondents in opposing the application raised the following grounds:a.That the applicant only wants the court to revoke the grant as a means of delaying the confirmation of the grant and final distribution of the deceased estateb.That the 1st applicant was fully aware of this Succession Cause at the time of filing and never contested the same.c.That the applicant filed an application for Revocation of Grant among other prayers dated the 21st day of January 2020 and the honourable court duly revoked the said grant and a fresh one was issued to the 1st to 3rd applicants and the 1st respondent on the 4th day of August 2020. d.That after the death of the deceased herein in the year 1992 the 1st applicant/administrator took over the management of LR.No.11/556 Eldoret Municipality but since he was irresponsible by the year 2013, the property had accumulated unpaid rates, water and electricity bills and the rental premises were no longer habitablee.That in a family meeting in the year 2013 held a meeting and authorized the 1st respondent to take over the management of the above mentioned LR No.11/566 Eldoret municipality.f.That the 1st respondent has always acted in the best interest of estate and ensured that the same is preserved awaiting distribution.g.That an application for confirmation of Grant dated the October 16, 2020 was filed and proposed a mode of distribution but the 1st applicant filed an affidavit of protest and opposed the proposed distribution.h.That instead of fixing the protest for hearing, the 1st applicant has yet again now filed an application for revocation of grant and seeking the removal of the 1st applicant as one of the administrators.

4. This succession cause has had a very unhealthy existence. Since its filing in 2018 very little has been achieved. This court will not condone unethical dealings in the estate from any of the parties.

5. The other administrators have accused the 1st respondent of refusing to cooperate but they have not demonstrated the same and neither have they showed what they have done in spite of the alleged frustrations.

6. I therefore order that the protest to the proposed application for distribution be heard within 60 days of this ruling or within a timeframe to be agreed upon by the parties and the court. Thereafter, the administrators must render the account as envisaged under section 83 (g) of the Law of Succession Act. For avoidance of doubts, where a specific administrator has been assigned a specific task, he/she must account for the same.

7. From the foregoing, none of the orders sought will be granted.

8. Costs be in the cause.

DELIVERED AND SIGNED AT HOMA BAY THIS 14TH DAY OF NOVEMBER, 2022. KIARIE WAWERU KIARIEJUDGE