[2022] KEHC 15649 (KLR)

In re Estate of Wallace Nkonge Mmantu (Succession Cause 604 of 2014) [2022] KEHC 15649 (KLR) (16 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15649 (KLR)

Republic of Kenya

In the High Court at Murang'a

Succession Cause 604 of 2014

J Wakiaga, J

November 16, 2022

IN THE MATTERS OF THE ESTATE OF WALLACE NKONGE MMANTU alias WALLACE NKONGE JOSHIA MANTU alias WALLANCE NKONGE JOSIA M’MANTU

In the matter of

James Muturi Mantu

Applicant

Ruling

1. The applicant by application undated but filed in court on 28th march 2022 under section 76(d) and 83 of the Succession Act and rules 44,49and 73 of the probates and Administration Rules moved the court for orders that:a.The grant of letters of Administration intestate to PKM made on 13th April 2015 and confirmed on 12th January 2018 be revokedb.That this Honourable Court be pleased to appoint the Applicant James Muturi Mantu as an Administrator of the estate of the deceased in place of the current Administratorc.That the letters of Administration intestate made to the Administrator here be confirmed.

2. The said application was supported by the annexed affidavit of the applicant which he deposed that the letters of administration was issued to PKM and duly confirmed and mode of distribution expressly set out in the in the said certificate, however due to the Administrators mental and health conditions she had been unable to complete the distribution of the residue of the estate.

3. It was contended that the applicant petitions the court in misc. Application no 4 of 2020 to have a guardian appointed which was done vide a ruling dated 10th February 2022under the mental health act and that the estate was at risk of loss.

4. It was deposed that the beneficiaries had agreed that he takes up as the administrator of the estate and to have the grant reissued as per the proposed mode of distribution herein under;-NAME OF THE PROPERTY BENEFICIARIES SHARES

Mwimbi Chogoria /1271 James Mutuiri MantuBryan Mwenda MantuKenneth Munene MantuCharity Makena Mantu Share Equally

2. Mavoko L.R 58237 James Mutuiri Mantu Whole

3. Thika Municipality L.R. No. 4953/2325 Charity Makena Mantu Whole

4. Kwale/Funzi Island/229 Kenneth Munene MantuCharity Makema MantuJames Mutuiri Mantu Share Equally

5. Kwale/Funzi Island/230 Kenneth Munene MantuCharity Makema MantuJames Mutuiri Mantu Share Equally

6. Kwale Funzi Island/16 James Mutuiri MantuBryan Mwenda MantuKenneth Munene MantuCharity Makena Mantu Share Equally

7. Mwimbi Chogoria/2500 James Mutuiri MantuBryan Mwenda MantuKenneth Munene MantuCharity Makena Mantu Share Equally

8. Mwimbi Chogoria/547 James Mutuiri MantuBryan Mwenda MantuKenneth Munene MantuCharity Makena Mantu Share Equally

9. Muthambi/U-Karimba/1273 Bryan Mwenda Mantu Whole

10. Mwimbi Chogoria/1612 James Mutuiri MantuBryan Mwenda MantuKenneth Munene MantuCharity Makena Mantu Share Equally

11. UNS.BCR Plot 6 (Chuka Town) Bryan Mwenda Mantu Whole

12. Kakuzi/Kirimiri Block 8/836 James Mutuiri MantuBryan Mwenda Mantu Share Equally

13. Kakuzi/Kirimiri Block 8/298 Charity Makena Mantu Whole

14. Thika Municipality 8336/21 Kenneth Munene Mantu Whole

15. Thika Municipality 8336/22 Kenneth Munene Mantu Whole

16. Thika Municipality Block 22/207 Bryan Mwenda Mantu Whole

17. Thika Municipality Block 4953/1941 Thika Education Complex Whole

18. Thika Municipality Block 24/2817 Charity Makena Mantu Whole

19. Thika Municipality Block 10/309 Bryan Mwanda Mantu Whole

20. Plot Allocation No.12 Mugira Market James Mutuiri Mantu Whole

21. Thika Municipality Block 24/682 James Mutuiri Mantu Whole

22. Thika Municipality Block 24/630 Kenneth Munene Mantu Whole

23. Matropi Estate Plot No.M620 Charity Makena Mantu Whole

24. Mavoko Municipality 337/1370 James Mutuiri Mantu Whole

25. Thika Municipality Block 20/2356 James Mutuiri Mantu Whole

26. UNS.BCR.48-Subuiga Town Kenneth Munene Mantu Whole

27. Plot Number 12B At Mogira Center Maragua Sub-County Kenneth Munene Mantu Whole

28. Allotment Letter ThikaNo.23136/XXXVII/33-Residential Plot No.4 Thika Municipality Bryan Mwenda Mantu Whole

29. Allotment Letter BCR Plot No.4 Charity Makena Mantu Whole

30. Plot Allocation Number LR12665/109 Gakungu James Mutuiri Mantu Whole

31. Membership Transfer of Landless Co-Op Society No.42A James Mutuiri Mantu Whole

32. Membership Transfer of Landless Co-Op Society No.43A Bryan Mwenda Mantu Whole

33. Chogoria/Kairuni 1270 James Mutuiri MantuBryan Mwenda Mantu Share Equally

34. JKUAT Staff Housing Plot No. to be confirmed Kenneth Munene Mantu Whole

35. Premier Flagship Centre BBK Account No.036100029Eco Bank Thika Acc. No. 0131100084Eco Bank Account No.238400006Meru South Farmers Sacco Account No. 5-02-8499-00403-00-01-04Cirigwa Farmers Co-operative Socient Account No. 8499-01-403 PKMJames Mutuiri MantuBryan Mwenda MantuKenneth Munene MantuCharity Makena Mantu To share Equally i.e. 20% Each

36. Ordinary Shares with Barclays Bank of KenyaOrdinary Shares with CentumOrdinary Shares with Kenya Commercial BankOrdinary shares with Kenya-ReOrdinary shares with Kenya Power and Lighting CompanyOrdinary shares with National Bank of KenyaOrdinary shares with SafaricomShares with Meso Housing Co-operative Society James Mutuiri MantuBrayan Mwenda mantuKenneth Munene MantuCharity Makena Share Equally i.e. 25 % Each

37. KAK 924 G – Nissan Diesel Thika Education Complex Whole

38. KAK 017B – Mercedes Benz Bryan Mwenda Mantu Whole

39. KZL 634 – Nissan Sahara Pick-up Kenneth Munene Mantu Whole

40. KBD 144K – Toyota Harrier James Mutuiri Mantu Whole

DETERMINATION 5. From the affidavit herein there are two issues for determination herein: A) what are the grounds for revocation of grant and has the applicant met the threshold? b) what are the duties, role and powers of a guardian a [pointed under the mental health Act.

6. The ground upon which the court may revoke grant of letters of administration are provided for under section 76 of the Law of Succession which provides as follows. Revocation or annulment of grantA grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion-(a)that the proceedings to obtain the grant were defective in substance;(b)that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;(c)that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;(d)that the person to whom the grant was made has failed, after due notice and without reasonable cause either-(i)to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court has ordered or allowed; or(ii)to proceed diligently with the administration of the estate; or(iii)to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or(e)that the grant has become useless and inoperative through subsequent circumstances.”

7. It seems to me that the applicants have satisfied the provision of Section 76 (e) in that by virtue of the current Administrator being declared to be suffering from a Mental illness which has affected her ability to administer the Estate the grant has become useless and inoperative through the Administrators mental incapacitation.

8. The second issue is the role and scope of the duties of a guardian appointed under the mental Health Act. The court is clothed with powers under sections 26, 27, 28 and 29 of the Act in a broad term over the estate of someone subject to the Act and in particular section 27 and 28 thereof and therefore find and hold that the applicant has made out a case for the grant of the orders sought.

9. I therefore allow the application herein and revoke the letter of administration granted to PKM and in her place Appoint the applicant James Muturi Mantu and confirm the grant herein with the mode of distribution as paragraph 4 herein above

DATED SIGNED AND DELIVERED AT MURANGA THIS 16TH DAY OF NOVEMBER, 2022J. WAKIAGAJUDGEIn the presence of Mr. Gitonga Advocate for the applicantCourt Assistant Caroline Mutai