[2014] KEHC 4707 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

SUCCESSION CAUSE NO. 536 OF 2011

IN THE MATTER OF THE ESTATE OF MAXIM KASONGO KIMUNDI (DECEASED)

MALITINA MUTU KASONGO

LUKAS KYEVA KASONGO …………… APPLICANTS

R U L I N G

The Summons for Confirmation of grant filed on 4/7/2012 lists the properties that comprise the estate of the deceased as follows:-

“Plot No. Nguluni Watema No. 110

Nguluni Watema No. 944

Kiu Plot No. 915. ”

One of the sons to the deceased, Ambrose Musau Kasongo on 3/8/2012 filed an affidavit of protest to the confirmation of the grant. It is contended that the affidavit in support of the summons for confirmation of grant offends the rules of procedure as the same is commissioned by the same firm of Advocates who drew the same. That the administrators have failed to attach the list of distribution and that some properties belonging to the estate of the deceased, that is Malili Agricultural Plot No. 0064 and Plot No. 1215 member No. 2588 have been deliberately left out. It is alleged that the 1st Administrator who is the widow of the deceased and the mother to the Protester deliberately transferred the said properties to her name. The Protestor has also stated that he is not comfortable with the inclusion of his brother, Lukas Kyeva Kasongo as a Co-administrator and the mother should administrate the estate alone. According to the Protestor, if the said 2nd Administrator remains as a Co-administrator then he too should be included as the 3rd Administrator. That the consent on distribution is purportedly signed by a deceased beneficiary Pius Muthenya Kasongo. The Protester has also averred that he was not involved in the proposed distribution neither asked to sign the consent on distribution.

The summons for confirmation of grant and the protest were heard contemporaneously by way of affidavits on record and written submissions. I have considered the affidavit evidence and the submissions filed by the counsels for the parties herein.

The summons for confirmation is commissioned by the same firm of Advocates who drew the same. This is unprocedural but the same does not go into the substance of the matter. Although the Protestor has raised the issue that Malili Agricultural Plot No. 0064 and Plot No. 1215 was fraudulently transferred to the mother’s/1st Administrator’s name, the same is not free property that is in the name of the deceased for the same has been distributed herein. The Protester ought to have pursued the issue of fraud in a different forum. The question whether the Protestor should be enjoined as the 3rd Administrator is also being brought in at the wrong forum as no summons for the revocation/or annulment of the grant issued herein was filed.

It was submitted on behalf of the Protester that there is no objection to all the properties being registered in the name of the 1st Administrator for her benefit and to hold in trust for all her children including the Protester.

The Administrator’s position is that under section 35 of the Law of Succession Act, the 1st Administrator as the surviving spouse is entitled to personal and household effects of the deceased absolutely and for a life interest in the whole residue of the net intestate estate and therefore there is no need of attaching a list of proposed distribution of the estate. Thus all the parties are in agreement on the issue of confirming the grant in the name of the 1st Administrator.

Consequently, the grant is hereby confirmed in the name of the 1st Administrator, Malitina Mutu Kasongo on her own behalf and on behalf of all the other beneficiaries. This being a family matter, each party to bear own costs.

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B. THURANIRA JADEN

JUDGE

Dated and delivered at Machakos this 15th day of May 2014.

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B. THURANIRA JADEN

JUDGE