IN MATTER OF THE ESTATE OF SARAH NJERI NJOROGE

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAJIADO

SUCCESSION CAUSE NO 2B OF 2017

IN THE MATTER OF THE ESTATE OF SARAH NJERI NJOROGE – DECEASED

MONICA WANJIKU NJOROGE

EVANSON NJOROGE WAGACHIE

JAMES WAGACII NJOROGE

EDWARD GICHURU NJOROGE

PATRICK KARANJA NJOROGE

ADAM SCHMID

FRANZISKA SCHERING

GRETA MARIE SCHERING

PAUL HENRY SCHERING…………..…..……….APPLICANTS/BENEFICIARIES

VERSUS

DAVID MUKII MEREKA………………….………….…RESPONDENT/EXECUTOR

RULING

1. The Applicants herein have moved this Court through a Summons dated 18^th August, 2021 brought under sections 46, 47, 82, 83 and 95 of the Law of Succession Act, Rules 73 of the Probate and Administration Rules, Article 165 of the Constitution of Kenya and all other enabling provisions of the law seeking the following orders:
2. Spent.
3. That pending the hearing and determination of this application, this Honourable court be pleased to allow the Deputy Registrar of this Honourable Court to execute all transmission document to pass the estate to the beneficiaries as per the grant confirmed herein on 29^th July, 2020 as read together with grant confirmed on 29^th October, 2013 in NRB HCSUC 2546 OF 2012 IN THE MATTER OF THE ESTATE OF ROLF SCHMID.
4. That pending the hearing and determination of this application the Honourable Court be pleased to issue an order removing all restrictions, caveats and or cautions registered against the TITLE NUMBER KAJIADO/OLOOLOITOKISH/KITENGELA/2919 or any other properties of the estate.
5. That pending the hearing and determination of this application the Honourable Court be pleased to order the Respondent/executor of the estate to surrender all title documents for the estate to the advocates of the beneficiaries immediately.
6. That the Honourable Court be pleased to allow the Deputy Registrar of this Honourable Court to execute all transmission documents to pass the estate to the beneficiaries as per the grant herein on 29^th July, 2020 as read together with grant confirmed on 29^th October, 2013 in NRB HCSUC 2546 OF 2012 IN THE MATTER OF THE ESTATE OF ROLF SCHMID.
7. That this Honourable Court be pleased to issue an order removing all restrictions, caveats and or cautions registered against restrictions, caveats and or cautions registered against the TITLE NUMBER KAJIADO/OLOOLOITOKISH/KITENGELA/2919 or any other properties of the estate.
8. That the Honourable Court be pleased to issue such other orders and directions as it may deem fit and expedient to implement the confirmed grant herein.
9. That the costs of this application be provided for.
10. The grounds in support of the Application are found on the face of it and in the Supporting Affidavit sworn by Monica Wanjiku Njoroge dated 19^th August, 202. Monica has stated that she is the mother of the deceased and one of the beneficiaries of the estate; that the deceased inherited the property from her late husband in accordance with his Will through a Grant of Probate which was confirmed on 29^th October 2013 in Nairobi Succession Cause No. 2546 of 2012; that the Grant in this Cause was confirmed on 29^th July, 2020 but the Executor has delayed the transmission of the estate and that the deceased in this Cause has passed on before the estate was transferred to her.
11. Monica has stated that the beneficiaries are not in dispute on the distribution of the estate; that they have secured a buyer for property TITLE NUMBER KAJIADO/OLOOLOITOKISH/KITENGELA/2919 but the Executor has continued to frustrate them by refusing to sign the transmission forms despite an undertaking being given to cater for his charges and fees of 12.8 million for allegedly acting for the estate; that the executor is holding several titles belonging to the estate and has also put a caution on the aforementioned property and that the confirmed grant in this matter is unambiguous and need no amendment or rectification.
12. It is her case that the continued frustration by the Executor is costing the estate as the buyer to the said property is threatening to pull out due to the delay; that the Executor is becoming a hindrance to the administration of the estate and that for these reasons it is only fair and proper for the Deputy Registrar of this Honourable Court to sign all documents for purposes of transmission of the estate to the beneficiaries and that the Executor does hand over all title documents for the estate to their advocates in exchange of an undertaking that his fees will be paid once the sale goes through.
13. The Application is opposed by the Respondent through his Replying Affidavit dated 12^th October, 2021 in which he has deposed that the Notice of Appointment by the firm of Kinyanjui Kirimi & Co Advocates is misleading as they do not act for all the beneficiaries as they only act for the 1^st to 4^th beneficiaries; that the 5^th beneficiary is represented by the firm of Triple OK Law Advocates, while the 7^th to 9^th beneficiaries are represented by Ayieko, Kangethe Advocates; that there is a similar pending application dated 16^th April 2021 by Itaya and Company Advocates for the 1^st to 4^th beneficiaries to which he responded vide his affidavit dated 26^th April 2021 and wish he relies on.
14. The Respondent denied the allegations that he is unfit to administer the estate and stated that he has been frustrated by the intermeddlers of the estate who he named as Martin Kahura and Lucy Wamaitha; that the said intermeddlers are the ones who have made it impossible for the purchasers’ advocate to enter into a sale agreement for the sale of Title Number Kajiado/Olooloitikosh/Kitengela/2919; that he needs protection from the intermeddlers who have continued to interfere with his role as the Executor to a point of even threatening his life and that the application herein is a scheme by the 1^st to 5^th beneficiaries to disinherit the other beneficiaries.
15. The Respondent filed a supplementary affidavit dated 17^th April, 2023 in which he raised issues that have been addressed by this Court in the Ruling dated 21^st September, 2022.
16. The Application was canvassed through written submissions.

Submissions by the Applicants

1. The Applicants filed their submissions dated 22^nd November, 2023. They have raised the following issues for determination:
   1. Whether the Respondent/Executor has performed his duties as the executor of the estate.
   2. Whether the Applicants are entitled to prayers sought?
   3. Who should bear the cost?

Whether the Respondent/Executor has performed his duties as the executor of the estate

1. The Applicants relied on sections 82 and 83 of the Law of Succession Act on that stipulates the duties and responsibilities of personal representatives/administrators and submitted that the administration of the estate should be completed within six months from the date of confirmation of the grant unless a longer period has been authorized by the court.
2. They have submitted that there are two grants of probate that have been issued and confirmed; that the said grants are unambiguous and require no amendment or rectification and which grant have not been challenged; that six months have elapsed since the said grants were confirmed but the Executor has failed to complete the administration of the estate and has failed to execute his duties as the Executor of the estate of the deceased.

Whether the Applicants are entitled to prayers sought

1. The applicants have submitted on this issue that the law allows the court to interfere with the administration of the estate where execution has not been done as provided under section 47 and 73 of the Law of Succession Act. It is their case that the executor does not hold the deceased’s property for himself but holds it in trust for the beneficiaries as stipulated under section 79 of the Law of Succession Act. They relied on In the Estate of Wainaina Waititu (deceased) [2015] eKLR, where the Court stated that:

“Section 79 of the Law of Succession Act vests the property of the deceased in the administrators.  That constitutes them legal owners of the property, yet they hold such property not for themselves, but as trustees for all those others interested in it, be they heirs or creditors.  They therefore stand in a fiduciary position with regard to the property and in relation to the beneficiaries.  As trustees they are accountable to the persons who are ultimately entitled to the assets upon distribution.  The applicants, as heirs, are within their rights to call for an account from the administrators.’’

1. They submitted, further, that the Executor should be removed and another executor be appointed to facilitate the distribution of the estate and surrender all documents relating to the estate to the advocates of the applicants to facilitate the distribution of the estate. They submitted that the court be pleased to allow the Deputy Registrar of this Court to execute all transmission documents to pass the estate to the beneficiaries and that in the interest of justice, this court does issue an order removing all restrictions, caveats and cautions registered against Title Number Kajiado/Olooloitikosh/Kitengela/2919 or any properties of the estate.
2. They relied on the case of In re Withdrawal of Caution by Mercy Njeri Mwaura [2017] eKLR, where the Curt stated as follows:

“As provided by Section 73(1) of the Land Registration Act 2012, the Court has discretion to remove any caution placed on the suit property.  The Court finds that as behoved by Sections 3A and 63(e) of the Civil Procedure Act, the Court has powers to make necessary orders for ends of justice to be met.  By ordering the removal of the caution/restriction herein, the Court will be issuing the said necessary orders which will ensure that the end of justice is met.”

Who should bear the costs of this Application

1. The Applicants cited Section 27 of the Civil Procedure Act to emphasize that costs follow events and relied on Reid Hewitt & Co -vs- Joseph AIR 1918 Cal 717 and Myres -vs- Defries (1880) 5 Ex D 180 as quoted in DGM -vs- EWG[2021] where it was held that:

“The expression ‘costs shall follow the event’ means that the party, who, on the whole, succeeds in the action gets the general costs of the action, but where the action involves separate issues, whether arising under different causes of action or under one cause of action, the word ‘event’ should be read distributive and the costs of any particular issue should go to the party who succeeds upon it.

1. The Respondent have not filed submissions. Although the Court record shows that counsel appearing on behalf of the Respondent informing the Court that the Respondent has filed his submissions dated 30^th November, 2024, no such submissions are in the Court file or in the CTS.

Analysis and Determination

1.  I have considered the application, the affidavits and the submissions. I will adopt the issues identified by the Applicants in their 895 submissions as the issues requiring determination. They have argued that the Executor/Respondent should be removed as he has failed to complete the administration of the estate and continues to hinder the distribution of the estate to the beneficiaries. It is their case that the two grants herein were confirmed on 29^th October, 2013 and 29^th July, 2020 and that since the confirmation of the grants, no distribution of the estate has occurred more than six months after the confirmation and that the Respondent has placed caveats and cautions on various properties including Title Number Kajiado/Olooloitikosh/Kitengela/2919.
2. Further that there is an intended sale for the above-mentioned property but the same has stalled due to the Executor’s refusal to sign the transmission forms. It is for these reasons that they ae seeking orders from this court to authorize the Deputy Registrar of this Court to execute all transmission documents to pass the estate to the beneficiaries and an order removing all restrictions and cautions registered against the aforementioned property.
3. The Respondent case is mainly that the allegations that he is unfit to administer the estate are not true. He has stated that he has been frustrated by the intermeddlers of the estate whom he named as Martin Kahura and Lucy Wamaitha and that the said intermeddlers are the ones who have made it impossible for the purchasers’ advocate to enter into a sale agreement for the sale of Title Number Kajiado/Olooloitikosh/Kitengela/2919. He claimed that he needs protection from these intermeddlers who have continued to interfere with his role as the Executor to a point of even threatening his life and that the application herein is a scheme by the 1^st to 5^th beneficiaries to disinherit the other beneficiaries.
4. The jurisdiction of this Court to entertain any application and determine any dispute under the Law of Succession Act is provided by Section 47 of the Law of Succession Act which provides that:

The High Court shall have jurisdiction to entertain any application and determine any dispute under this Act and to pronounce such decrees and make such orders therein as may be expedient:

Provided that the High Court may for the purpose of this section be represented by resident magistrates appointed by the Chief Justice.

1. Rule 73 of the Probate and Administration Rules gives power to this Court to make such orders as may be necessary for ends of justice or to prevent abuse of the process of the Court. It provides that:

Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.

1. This Court is therefore properly constituted to determine this matter.
2. It is clear to this Court that the actions of the Executor of the Will in respect of the estate of the deceased, Sarah Njeri Njoroge are being questioned by the beneficiaries who claim that the Executor has delayed in completing the administration of the estate. I have carefully considered the issues raised in this matter. Section 83(g) and (h) of the Law of Succession Act provides as follows:

Personal representatives shall have the following duties—

(g) within six months from the date of confirmation of the grant, or such longer period as the court may allow, to complete the administration of the estate in respect of all matters other than continuing trusts, and to produce to the court a full and accurate account of the completed administration.

(h) to produce to the court, if required by the court, either of its own motion or on the application of any interested party in the estate, 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.

1. This provision was applied by the Court in In Re Estate of Gitere Kahura (deceased) [2020] eKLR where the court stated that the primary mandate of the probate court is distribution of the estate and once an order is made distributing the estate, the Administrators must comply, or the Court would be compelled to remove them as Administrators. The court further stated that administrators have a duty to the beneficiaries to ensure distribution of the estate within the stipulated time.
2. The consequences of an administrator’s failure to sign completion documents were well elaborated in Kerugoya Succession Cause No. 36 of 2013, Re Estate of Wilfred Munene Ngumi (deceased) [2020] eKLR where the court stated:

“Section 83(g) of the Act mandates administrators of an estate to, within six months of confirmation of grant or longer period as the court may allow, complete the administration of the estate, and to produce to the court a full and accurate account of the complete administration.

This undertaking cannot be done unless the necessary documents are executed by the parties…”

1. The Executor has not provided any justification why he has delayed in completing the administration of the estate. I find relevance in the case of Re Estate of the Late Kubuta Kamara Nguuro alias Pharis Njegegu (Deceased) [2021] eKLR, where the court faced with a similar situation as in this case expressed itself as follows:

“24. This state of affairs is not healthy and should not be countenanced by the court.  The applicants prayed that the Executive Officer/Deputy Registrar do sign all the documents on behalf of the respondent. In Rose Wanjiku Kuria -vs- Nganga Mugwe [2003] eKLR  and which decision I agree with, the court held that by virtue of Section 79 of the Law of Succession Act, the administrator gets all the property of the deceased vested in him/her and the court further stated that the Court’s Registrar or his deputy or any other officer of the court not having been granted Probate or letters of administration and therefore having had no property of the deceased vest in him and no powers and duties in accordance with provisions of the Law of succession Act, cannot become an executor or administrator and as such cannot administer the estate of the deceased person and the court to order him or authorize him to administer by signing any of those documents as requested in this summons, is to make an order which is not supportable under the Law of Succession Act.

25. However, this court being a succession court, has ample powers donated to it by Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules to resort to, in order to meet the ends of justice. The task of administering the estate is still on the shoulders of the respondent (administrator). As I have already noted, despite the grant having been confirmed in the year 2007 and even after the subsequent amendment by Muchemi J (which included the Wang’uru Plot in the certificate), the respondent has nonetheless failed to administer the estate. I believe that court orders ought not to be issued in vain but must be complied with. Further, the office of administrator of estate of a deceased person is an office which is built on the foundation of trust and goodwill. Where such is seen to be lacking, then the court ought to invoke its powers to ensure that justice is done to the beneficiaries more so where the administrator puts the beneficiaries in an unenviable position.”

1. It is my belief that the powers of this Court under Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules must be invoked for ends of justice to be met, more so when the Respondent has failed to persuade this court as to the reasons for the delay in completing the administration of the estate.
2. I note that prayers I, 2, 3 and 4 of the Application under determination have been overtaken by events. These prayers were being sought in the interim pending the hearing and determination of the Application under determination.
3. I allow the Application in respect of the remaining prayers not as framed, but in the following manner:
4. That prayer 7 is declined. However, the Executor shall, with immediate effect and within 60 days from the date of this Ruling, take all necessary measures to complete the administration of the estate of thee deceased which shall include the execution of all the necessary documents required to pass the estate to the beneficiaries as per the confirmed grants.
5. That failure to comply with the above order by the Executor shall automatically pave the way for the Deputy Registrar of this Court, who is hereby authorized, to execute such documents as prayed in Prayer No. 5 of this Application.
6. That, an order is hereby issue removing all restrictions, caveat and/or cautions registered against Title No. Kajiado/Olooloitikoshi/Kitengela/2019 or any other properties of the estate of the deceased herein.
7. That costs herein shall be borne by the estate of the deceased.
8. Orders shall be issued accordingly.

Dated, signed and delivered this 24^th day of January 2025.