[2022] KEHC 11148 (KLR)

Kalamai v Bor & another; Lamai & 2 others (Respondent) (Succession Cause 17 of 2018) [2022] KEHC 11148 (KLR) (20 June 2022) (Ruling)

Neutral citation: [2022] KEHC 11148 (KLR)

Republic of Kenya

In the High Court at Eldoret

Succession Cause 17 of 2018

EKO Ogola, J

June 20, 2022

Between

Irene Zippy C. Kalamai

Petitioner

and

Naumy Jerob Bor

1st Objector

Stanley Kibet Kogo

2nd Objector

and

Benjamin Kiptanui Lamai

Respondent

Felix Lamai

Respondent

Emmanuel Kiptoo Lamai

Respondent

Ruling

1. This decision concerns the appointment of administrators with respect to the estate of the late Alfred Kiplamai Bor who died on October 16, 2017. This court on 22/3/2021 issued orders directing the parties herein to file affidavits with respect to the issue of appointing administrator with regard to the said estate.

2. Pursuant to the said orders, the petitioner, Irene Zippy C. Kalamai filed an affidavit on 28/5/2022 in which she proposed that the Honourable Court appoints Naumy Jerob Bor, Irene Zippy C. Kalamai, Benjamin Kiptanui Lamai and Felix Lamai as the administrators to the deceased’s estate. The petitioner further deposed that she had nominated Naumy Jerob Bor on behalf of the Objectors and in accordance with section 66 of the Law of Succession Act, as she was the sole surviving widow of the deceased. The Petitioner further averred that she had been nominated by the majority of the members of the 1st House to represent them. The Petitioner further averred that she had nominated Benjamin Kiptanui Bor to act on behalf of the 2nd House and Felix Lamai to act on behalf of the 3rd House.

3. The petitioner urged court to appointed the said proposed administrators.

4. Emmanuel Kiptoo Lamai, the 3rd respondent herein in a replying affidavit sworn on July 27, 2021 opposed the proposal by the petitioner herein. He averred that the deceased was polygamous having married (3) wives and that the 1st objector was the third and the only surviving wife.

5. The 3rd respondent’s case is that after the demise of the deceased, a family meeting was held on 28/12/2017 whereof Benjamin Kiptanui Lamai, Felix Lamai and himself were proposed and endorsed as the proposed administrators of the deceased’s estate with instructions to petition for the grant of letters of administration intestate. That subsequently, the sons and daughters of the deceased executed a consent in favour of the said proposed administrators.

6. The 3rd respondent maintains that in view of the foregoing there is no doubt about the family’s position regarding who ought to be appointed administrator of the said estate. The 3rd respondent urged court to respect the wishes of the deceased’s family.

7. The 3rd respondent opposed the appointment of Irene Zippy C. Kalamai (the petitioner herein) whom the 3rd Respondent contends she is not fit to be an administrator of the estate, having fraudulently petitioned for grant of letters of administration intestate without involving the other beneficiaries resulting in the revocation of the said grant. Further the 3rd respondent contends that the conduct of the petitioner aforesaid disqualifies her from holding the said position, a position which is held in trust of the entire family and not that of the 1st House alone. The 3rd respondent alleges that the entire family has completely lost trust in the petitioner and that her appointment as administrator does not inspire any confidence in the said position.

8. The 3rd respondent averred that he has been proposed to represent the 1st House, and he proposed the following persons be appointed as administrators of the said estate; Emmanuel Kiptoo Lamai to represent the 1st House, Benjamin Kiptanui Lamai to represent the 2nd House, Felix Lamai to represent the 3rd House and Naumy Jerob Bor as the only surviving widow of the deceased.

Determination 9. In this instant cause, the only issue of determination is who ought to be appointed as the administrator of the estate of the deceased.

10. Section 66 of the Law of Succession Act is instructive and it provides:-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 preference:-a)A surviving spouse or spouses, with or without association of other beneficiaries;b)Other beneficiaries entitled on intestacy with priority to their respective beneficial interests as provided by Part V;c)The Public Trustee; andd)Creditors

11. The record herein indicates that the deceased was married to three wives and that at the time of his death, he was only survived by the Naumy Jerob Bor, 1st Objector and twenty-one (21) children from the (3) respective houses. The 1st Objector together with the children from the 1st and 2nd Houses all have equal right or entitlement to apply for administration, going by section 66 of the Law of Succession Act.

12. The evidence on record indicates that the petitioner herein instituted these proceedings on behalf of the deceased’s estate. From the record it is also clear that vide this court’s Ruling dated April 5, 2020 the court held that the process of obtaining the letters of administration was defective as the Petitioner did not cite the 1st Objector as the surviving widow of the deceased and that she had not obtained consent from all the beneficiaries of the deceased at the time of petitioning for the grant of letters of administration intestate with respect to the deceased’s estate. Consequently, the grant issued to the Petitioner herein was revoked.

13. From the pleadings before me it is also clear that the bone of contention from proposals given by the Petitioner and the 3rd Respondent touch on issue of representation of the 1st House. There is in fact no doubt that the petitioner and the 3rd respondent are both children emanating from the 1st House both of whom are seeking to represent interests of the 1st House in the administration of the deceased’s estate.

14. Having considered all the circumstances in this case, it is clear that the relationship between an administrator and the beneficiaries of a deceased is a fiduciary one. The petitioner herein was in breach of the said relationship when she proceeded to petition for grant of letters of administration intestate without including all the beneficiaries of the deceased and without seeking consent from all the beneficiaries. It is without a shadow of doubt that the Petitioner is no longer fit to hold that position. In view of the foregoing I am inclined to lean towards the proposal by the 3rd respondent and not that of the petitioner.

15. It is for that reason, that I invoke the inherent powers of this court granted under section 76 of the Law of Succession Act and section 73 of the Probate and Administration Rules and make the following orders:i.Naumy Jerob Bor, Emmanuel Kiptoo Lamai, Benjamin Kiptanui Lamai and Felix Lamai are hereby appointed as the administrators to the estate of the late Alfred Kiplamai Bor.ii.The grant of letter of administration intestate with respect to the estate of the late Alfred Kiplamai Bor be and is hereby issued to Naumy Jerob Bor, Emmanuel Kiptoo Lamai, Benjamin Kiptanui Lamai and Felix Lamai (the administrators herein)iii.Naumy Jerob Bor, Emmanuel Kiptoo Lamai, Benjamin Kiptanui Lamai and Felix Lamai (the administrators herein) shall within 90 days from the date hereof produce a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings therewith up to the date of the account.

DATED, SIGNED AND DELIVERED THIS 20TH OF JUNE 2022E. K. OGOLAJUDGE