[2022] KEHC 11715 (KLR)

In re estate of Virginia Mukuhe Kamande (deceased) (Succession Cause 150 of 2014) [2022] KEHC 11715 (KLR) (19 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11715 (KLR)

Republic of Kenya

In the High Court at Nakuru

Succession Cause 150 of 2014

JM Ngugi, J

May 19, 2022

IN THE MATTER OF THE ESTATE OF VIRGINIA MUKUHE KAMANDE (DECEASED) HANNAH NYAMBURA KIMANI....APPLICANT

Ruling

1. The Chamber Summons Application before me is dated 06/10/2021. Hannah Nyambura Kimani (hereinafter -the Applicant) is seeking the following orders.1. Spent

2. That the letters of administration de bonis non be issued to the Applicant Hannah Nyambura in respect to this estate.

3. That the grant of letters of administration intestate issued on the 2nd September 2014 Rachael Wanjiru Kimani (sic) be and is hereby revoked

4. That the Honourable Court do issue further orders and directions it thinks fit just and expedient to grant.

5. That costs be on course. (sic)

2. The reasons upon which the Applicant seeks the orders above are contained in the grounds on the face of the application and the affidavit in support thereof dated 06/10/2021. The Applicant’s deposition is that Rachael Wanjiru Kimani who is her mother was the sole Administrator of the estate until her death on 02/09/2014. She states that this Court required Rachael to execute Naivasha Civil Suit No. 53 of 1991 but she passed on before she could execute the same. The Applicant says that they had difficulties tracing the file in the said suit but the same has now been made available from the archives and that the 2nd Beneficiary who is her aunt cannot take over the administration of the estate due to mental illness.

3. She also depones that upon the demise of her mother, the sons of Nguyai and other trespassers have invaded and informally subdivided the land and they -the Applicant are on the verge of eviction. The Applicant therefore prays that she be given letters of administration ad litem to protect the estate and for purposes of execution in Naivasha Civil Suit No. 53 of 1991.

4. The Applicant has also undertaken to seek the relevant directions from this Court and to give account of the estate upon the completion of execution in Naivasha Civil Suit No. 53 of 1991. She depones that all her siblings agree to the orders herein being granted.

5. The Applicant filed skeletal submissions dated 05/01/2022, in which she reiterates her affidavit and submits that given the death of the sole administrator, the estate is at risk of being wasted and that it is prudent to have her complete the administration. She relies on the cases ofEstate of Goolamhoosain Manjee Keshavjee (Deceased) [2017] eKLR and In re Estate of Briggite Gohil (Deceased) [2018] eKLR.

6. The instant application raises two issues: First whether the grant dated 02/09/2014 ought to be revoked and whether a grant de bonis non administratis should issue to the Applicant.

7. On the first issue, Section 76 sets out the grounds upon which a grant may be revoked. One of the grounds listed therein is that the grant has become useless and inoperative through subsequent circumstances. The circumstances in this case are that the Administrator is now Deceased. The death of the Administrator falls squarely within the meaning of circumstances that would render a Grant useless and/ or inoperative.

8. Is the Applicant entitled to apply for the Grant herein? Where the Deceased died intestate, Section 66 of the Law of Succession Act sets out the persons entitled to apply for a grant of representation and their order of priority as follows:When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preferencea.surviving spouse or spouses, with or without association of other beneficiaries.b.other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;c.the Public Trustee; andd.creditors:Provided that, where there is partial intestacy, letters of administration in respect of the intestate estate shall be granted to any executor or executors who prove the will.

9. Although not a direct beneficiary of the Deceased’s estate, the Applicant’s claim to the estate arises from her being a child of a beneficiary of the estate. additionally, from the Affidavit of Service dated 01/11/2021, the Applicant has proved on a balance of probability that the other beneficiaries were served with the present application. The application is therefore undefended.

10. The purpose of a grant de bonis non administratis is to allow an applicant to complete the administration of the Deceased’s estate where the original administrator commenced administration but is for some reason, unable to complete it. In this case, the reason given is that the original administrator is now deceased. Accordingly, it is in the best interest of the estate and its beneficiaries that there be an administrator for the estate.

11. In the circumstances the application dated 06/10/2021 is allowed in the following terms:I.The Grant of Letters of Administration issued on 02/09/2014 to Rachael Wanjiru Kimani is hereby revoked.II.A grant de bonis non administratis is hereby issued to Hannah Nyambura Wanjiru.III.Costs shall be in the cause.

12. Orders accordingly.

DATED AND DELIVERED AT NAKURU THIS 19THDAY OF MAY, 2022. ..........................JOEL NGUGIJUDGE