[2004] KEHC 165 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT EMBU

SUCCESSION 203 OF 2003

IN THE MATTER OF THE ESTATE OF SAMUEL NJIRU M’MUMO (DECEASED)

WANJIKU SAMUEL ……………...........................................…………….PETITIONER

RULING

1. The Application dated 28. 10. 2004 seeks Orders that Moris Njeru Samuel be substituted under Order XXIII Rule 3 of the Civil Procedure Rules in place of his mother, Wanjuki Samuel who has since died. On 13. 10. 2004 and purportedly under Rule 41 of the Probate and Administration Rules, one Mary Marigu filed a similar Application seeking that she be substituted in place of Wanjuki Samuel aforesaid.

2. I heard both Applicants and it is clear that Morris Njeru Samuel is the eldest son of the deceased while Mary Marigu is the eldest and married daughter of the deceased.

3. At the hearing of the Application I sought to know the stand of the parties’ siblings on the matter. John Njue, Felista Muthoni and Anthony Njiru the only siblings of the two Applicants were unanimous that Mary Marigu is unfit to become an administrator to the estate of the deceased in this matter. Other relatives who appeared including the Applicants’ uncles and aunts were emphatic that Mary Marigu is totally unfit to replace her mother as the administrator herein. Her own son, James Muchangi added his voice in the same direction.

4. I listened to the parties and to my mind, firstly, a substitution of a deceased administrator can be done and the new administrator must abide by the Succession Act. Where there is a risk that an intended administrator will plunder and waste the estate to the detriment of the beneficiaries interests, the court cannot appoint that person as an administrator.

5. Without saying more in this matter Mary Marigu did not help her case by an overdomineering, condescending attitude towards her siblings and relatives even in court! She came out as a person intent on selfishly holding to all the documents left by her mother without consulting the other beneficiaries. Her demeanour in court brought out all these attributes and worse! This court charged with the duty to supervise the administration of estates generally would be missing the boat if it granted powers under the Act to such a person.

6. I was initially minded to appoint both Applicants as administrators but having heard all the beneficiaries and interested parties and seen in person the know-it-all, I shall-do-what I want attitude of Mary Marigu, the estate of Samuel Njiru M’Mumo is perhaps safer without Mary Marigu.

7. It appears that the estate of Wanjuki Samuel is yet to have an administrator and it may be that Mary Marigu may want to apply for letters of administration to that estate if indeed she has all documents relating to it. To hoard them without lawful authority would only increase the friction in the family. The said Wanjuki Samuel died on 24. 8.2004 and it would be in the best interests of her survivors that the matter is quickly resolved.

8. As for the estate comprised in this cause, I shall substitute Moris Njeru Samuel in place of Wanjuki Samuel (deceased) as the administrator and shall dismiss Mary Marigu’s Application dated 13. 10. 2004.

9. Costs thereof shall be in the cause.

Orders accordingly.

Dated and delivered in open court on this 22nd of November 2004.

I.LENAOLA

AG. JUDGE

Applicant - Present

Beneficiaries- Present

I.LENAOLA

AG. JUDGE