[2022] KEHC 13250 (KLR)

Teresia Kang’Ethe v Veronica Njuguna (Succession Cause 799 of 2009) [2022] KEHC 13250 (KLR) (Family) (3 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13250 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 799 of 2009

AO Muchelule, J

October 3, 2022

IN THE MATTER OF THE ESTATE OF KAMAU MUIGAI (DECEASED)

Between

Teresia Wanjiru Kang’Ethe

Applicant

and

Veronica Wanjiru Njuguna

Respondent

Ruling

1. There is no dispute that James Kang’ethe was one of the children of the deceased Kamau Muigai who died intestate on January 28, 1994. The DNA that was ordered by this court, and conducted by Lancet Kenya (PLK) on 2August 6, 2019, confirmed that the applicant Teresia Wanjiru Kang’ethe was the child of the late James Kang’ethe, and therefore the granddaughter of the deceased Kamau Muigai.

2. The deceased’s children Joseph Muigai Kamau, the respondent, Veronica Wanjiku Njuguna, Nicholas Muya Kamau, Francis Njoroge Kamau and Boniface Ndunge Kamau had on August 29, 2002 been appointed in Thika CM Succession Case No 364 of 1997 as the administrators of the estate of the deceased. The grant had been confirmed on June 4, 2008. This court on June 14, 2018 revoked the grant, set aside the certificate of confirmation and asked that new administrators be appointed to manage the deceased’s expansive estate.

3. In the present application dated September 27, 2021 the applicant has sought to be appointed as administrator along with the respondent and Joseph Muigai Kamau. Joseph Muigai Kamau did not oppose the application, but the respondent opposed it. She wants the earlier administrators be appointed. As for the applicant, the respondent stated that she was new to the estate and could not therefore be effective in its administrator. She complained that the applicant had always frustrated the administrators of the estate. The particulars of the frustration were not given. What had happened was that when the initial administrators, the respondent included, sought to disinherit the applicant’s late father, the applicant and her mother Emma Wanjiku Ndung’u successfully applied for the revocation of the grant to the administrators. In fact, in that application the administrators had taken the position that the late James Kang’ethe had not left any family. This was not true, as the applicant was his child. The applicant’s legitimate complaint to the court cannot be deemed to be frustrating the administration of the estate of the deceased.

4. Under section 66 of the Law of Succession Act (Cap 160) the court has the final discretion to determine who the administrators of the estate of the deceased person shall be. It shall be guided by the order of preference under the Section. Section 66 provides 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 preference—(a)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; and(d)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.”

5. It is evident that priority is given to surviving spouses, followed by the other beneficiaries entitled in intestacy as set out in Part V of the Act, then the public trustee and creditors. The persons entitled in intestacy according to Part V, in their order of preference, include children (and grandchildren where their own parents are dead), parents, siblings, half-siblings and other relations who are in the benefit degree of consanguinity up to and including the sixth degree (In re Estate of Imoli Luhatse Paul (Deceased)[2021]eKLR, In the Estate of George Ragui Karanja (Deceased) [2016]eKLR; and In re Estate of Late Mwanza Makuzo (Deceased) [2021]eKLR.

6. If James Kang’ethe were alive, he would rank equally with all the other children of the deceased as far as the administration of the estate was concerned. Now that he died, the applicant will legally step in his shoes and rank equally with the deceased’s children, and be equally entitled to administer the estate (In re Estate of Wahome Njoki Wakagoto [2013]eKLR.

7. The question of the suitability of the applicant to administer the estate of the deceased was raised by the respondent. However, there was no evidence that she has intermeddled with the estate of the deceased, she has any financial issues or she is insolvent, or that she has at any time been deemed to be fraudulent in dealing with the estate, or at all. She has, by this application, shown her interest and willingness to administer the estate of the deceased. It is material that the other children of the deceased have not shown interest in wanting to administer the estate of their late father.

8. Consequently, I allow the application dated September 27, 2021, and appoint Teresia Wanjiru Kang’ethe, Veronica Wanjiru Kang’ethe and Joseph Muigai Kamau to be the joint administrators of the deceased Kamau Muigai. I further direct that the administrators, or any of them, shall within 90 days file and serve to all beneficiaries an application for the confirmation of the grant of letters of administration. Any person served shall have 21 days to respond to the application.

9. The cause shall be mentioned on January 25, 2023 for directions.

10. Costs shall abide the cause.

DATED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 3RD DAY OF OCTOBER 2022A.O. MUCHELULEJUDGE