Background
1. ASHA ROBI BUDDERY (“the deceased”) died on 29th March 2005, at Agakhan Hospital, Kisumu. She left behind one son, and eight daughters. These were: Lorna Buddery, John Buddery (deceased), Dayne Huggins, Ann Buddery, Monica Allmutt (deceased), Lilian Fransson (deceased), Lynett Buddery, Susan Rashid and Mary Coleman.
2. The deceased also left one property as her estate. The property was; Kisumu/Municipality/Block/11/85.
3. With the consent of all the beneficiaries to her estate the Office of the Public Trustee commenced the petitioning process of the estate of the deceased herein. On 4th November 2015, this Court issued Grant of Letters of Administration and the same was duly confirmed with a Certificate of Confirmation been issued on 8th October 2019.
4. The Office of the Public Trustee with the consent of the beneficiaries proceeded to sell the sole asset of the estate of the deceased herein, Kisumu/Municipality/Block/11/85, and proceeded to distribute the proceeds of the sale to the respective beneficiaries, after payment of the estate liabilities.
5. Vide Summons to Account dated 23rd September 2022, orders were sought to have the Office of the Public Trustee be compelled to render accounts to the Court and all the relevant beneficiaries to the estate of the deceased prior to the distribution of the proceeds acquired from the sale of Kisumu/Municipality/Block/11/85. The Public Trustee proceeded to file its respective Preliminary Objection on 30th September 2022, averring that the Applicants lacked locus standi to institute the application. Subsequently, the Preliminary Objection was dismissed by this Court on 29th June 2023.
6. Vide directions issued on 25th October 2023, this Court ordered the parties to file and exchange their responses and submissions on the application for Summons for Accounts dated 22nd September 2022. Further, the Public Trustee was ordered to file a statement of accounts.
Application
7. In the Summons for Account dated and filed on 23rd September 2022, the Applicants seeks the following reliefs:
a. Spent.
b. M/S Walker Kontos Advocates do transfer to the Public Trustee, the proceeds of the sale of Kisumu/Municipality/Block/11/85, in the sum of Kshs. 60,000,000/= pending the Public Trustee’s account rendering to the Court and to all the beneficiaries.
c. The Public Trustee be prohibited from making any deductions or payments from the proceeded of sale of the sole assets of the estate of the deceased, Kisumu/Municipality/Block/11/85, pending the account rendering.
d. The Certificate of Confirmation issued on 28th October 2019, prior to the sale of the sole asset of the estate of the deceased pursuant to the Court orders issued on 17th December 2020 be revoked and set aside pending issuance of a proper Confirmed Grant stipulating the correct value upon the Public Trustee rendering account.
e. The Public Trustee, do within such time as this Court shall direct, produce to this Court and to all the beneficiaries a full and accurate account prior to the distribution of the proceeded of the sale of Kisumu/Municipality/Block/11/85.
f. Costs of the application be provided for by the estate.
8. The application is predicated on the grounds on the face of it and the Supporting Affidavit sworn by the Applicants herein, George Odhiambo, who depose inter alia that he is the grandson of the deceased herein as his father was the late John Hayden Martin Budddery a.k.a Hussein H.M. Buddery. According to him, orders issued on 17th December 2020 by F.A. Ochieng’ authorized the sale of the sole asset of the deceased herein, Kisumu/Municipality/Block/11/85, and a sale agreement was prepared by the Public Trustee to commence the same. He averred that Kisumu/Municipality/Block/11/85 was sold off to one Devaish Jaykumar Mansukh Shah and Enworld Holding Limited for the sum of Kshs. 60,000,000/= and proceeded to annex the sale agreement marked as Exhibit GOB-1.
9. Subsequently, he averred that the Public Trustee appointed the firm of Walker Kontos to act on its behalf. He was categorical that no services of estate agents were sought thus no payment was to be effected to the alleged agents as per annexure marked Exhibit GOB-3. He averred that according to the seen correspondence from M/S Walker Kontos it was the purchasers who retained the estate agent and agreed to settle their commission/fees.
10. He avers that there is a possibility of intermeddling with the estate of the deceased as the sale proceeds are being squandered by some of the beneficiaries retaining the firm of M/S Walker Kontos and the Public Trustee and up to the time of filing the instant application no deposit of the said sale proceeds has been made into the account of the Public Trustee.
11. He deposed that unless the orders sought are issued to compel M/S Walker Kontos Advocates to transfer the sale proceeds into the account t of the Public Trustee he is certain that the estate of the deceased shall suffer heavy and irreparable loss and that the distribution of the said estate on the basis of the Confirmed Grant issued on 28th October 2019 will be erroneous as the same was then valued at Kshs. 19,000,000/=.
12. In response to the averments, Henry Omino, an Advocate practicing as such in the firm of Walker Kontos Advocates, filed a Replying Affidavit dated 14th February 2024, wherein he deposed that he conducted the sale of L.R. No. Kisumu/Municipality/Block/11/85 on behalf of the Public Trustee and that the firm received Kshs. 60,000,000/= from the purchasers to be held in trust pending the conclusion of the sale.
13. According to him, the Kshs. 60,000,000/= was expended as follows:
a. Kshs. 13,000/= was paid towards clearing the outstanding land rates to effect transfer of title and that prior to making the said payment the Public Trustee was duly notified vide email dated 25th July 2022. He referred to annexure marked as HO1 and HO2 respectively.
b. Kshs. 516,870/= was released to the Office of the Public Trustee as payment for the accrued land rates which had to be paid prior to the transfer of the property to the respective purchasers. He referred the Court to annexure marked as HO4 and HO5 respectively.
c. Kshs. 100,000/= was paid to one of the beneficiaries at the instructions of the Public Trustee. He deposed that the said beneficiary, Lorna Buddery, resided on the estate and the amount was to enable her to relocate. This ensured that the purchasers were handed over vacant possession of the suit land. He annexed an email to the Public Trustee dated 28th June 2022 marked as HO6 and proof of disbursement of the said amount marked as HO7.
d. Kshs. 970,000/= was released as agreed fees to the firm of Walker Kontos Advocates, and added on to that VAT and necessary disbursements totaling to Kshs. 1, 138,680/=. He annexed a marked copy of note fees with ETR duly issued by the Public Trustee as HO8.
14. He deposed that on 26th September 2022, the firm of Walker Kontos Advocates wrote to the Public Trustee, informing him that they had initiated a transfer of the sum of Kshs. 58, 231,536/= as that was the remaining amount with them. He availed the email together with proof of disbursement as annexures marked an HO9 and HO10 respectively.
15. In response to the averments, Evans Marwanga, Assistant Public Trustee at the 1st Respondent swore a Replying Affidavit dated 22nd November 2023, wherein he deposed that the the Public Trustee has demonstrated competence, integrity, good governance and transparency while dealing with the estate of the deceased herein and that the valuation of the estate of the deceased was courtesy of the valuation report dated 23rd September 2022, which noted the land was valued at Kshs. 30,000,000/= as at 29th March 2005. On the estate agency, he deposed that the firm of Lake Estates Agency Limited signed an agency agreement with the Public Trustee on 13th August 2021. He concurred with the stipulations under Section 83 (e) of the Law of Succession Act.
16. He deposed that on 1st November 2022, a letter was forwarded to the Applicants requesting details of the legal beneficiaries to the estate of John Martin Buddery (deceased) and Anne Marie Buddery(deceased) to enable the administrator finalize the distribution.
17. He swore a Further Affidavit on 9th August 2023, wherein he deposed that their accounts as filed on 11th April 2024, the advocates fees of Kshs. 1, 138,680/= was mistakenly labelled as VAT and the same has been rectified as per annexure marked APT1.
18. The application was canvassed by way of written submissions. Both parties complied.
19. The Applicants submitted that the conducted of the Public Trustee herein is not in consonance with the laws as he was not open with the dealings in the sole asset of the estate of the deceased as per Article 232 of the Constitution of Kenya, 2010 and Sections 6 and 7 of the Trustees Act Cap 168.
20. The 1st Respondent submitted that the Public Trustee has always administered and distributed the estate of the deceased with integrity, good faith and that it is bound by the dints of Article 10 (2) (c) and Article 232 (1) (e) and (f) of the Constitution of Kenya. Further, the 1st Respondent submitted that it is ready and willing to finalize distribution to the respective legal representatives of the remaining two beneficiaries of the estate of the deceased and render accounts.
Analysis and determination.
21. I have considered the application as well as the rival affidavits. I have also considered the submissions of learned counsels. There are certain issues which appear not to be in dispute. Firstly, the Public Trustee is ready and willing to substitute the deceased beneficiaries with their respective legal representatives. Secondly as at 8th October 2019, the said L.R. No. Kisumu Municipality/Block11/85 was valued at Kshs. 19,000,000/=. Thirdly, the rectification of the register pursuant to this Court’s order effected the transfer and registration of L.R. No. Kisumu Municipality/Block11/85 under the name of the deceased herein. Lastly, there is no dispute regarding the distribution of the asset vide the confirmation issued 8th October 2019. That being the position, I find the following issues necessary for determination namely:
(i) Whether the Court has jurisdiction to entertain the Applicants Application.
(ii) Whether an order for accounts should issue to both the Public Trustee over the administration and distribution of proceeds from the sale of L.R. No. Kisumu Municipality/Block11/85
(iii) Whether the confirmed grant issued on 8th October 2018 should be rectified to include the legal representatives of the deceased beneficiaries.
22. As regards the first issue, I note that the Applicants application is predicated upon Section 47 of the Law of Succession Act which grants the High Court wide and unlimited jurisdiction to make any orders necessary for the ends of justice to be met as follows:-
“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 as may be expedient.”
23. Further Rule 73 of the Probate and Administration Rules provides that the court has inherent powers to make such orders as may be necessary for the ends of justice to prevent abuse of the court process
24. There is a clearly a dispute between the Applicants and 1st Respondent over the distribution of the proceeds of the sale of the asset of the deceased herein. The dispute appears to be one under the Law of Succession Act and which warrants this Court to consider the same and make a determination thereon. Consequently, I find that this Court has jurisdiction to entertain the Applicants application.
25. As regards the second issue, it has transpired that the valuation of the asset L.R. No. Kisumu Municipality/Block11/85 which had been captured during the Confirmation of the Grant on 8th October 2019 was valued at 19,000,000/=. The Applicants want the Certificate of Confirmation of Grant to capture the sale price of the L.R. No. Kisumu Municipality/Block11/85 property.
26. Having comprehensively set out the parties’ respective cases, I reiterate that one of the major tasks required of administrators managing estates of deceased persons is the rendering of accounts. This is a statutory duty from which no derogation should arise. The issue of rendering accounts is captured in Section 83 of the Law of Succession Act. Some of the salient provisions thereof regarding the duties of personal representatives are as follows:-
“(e) Within six months from the date of the grant, to produce to the court 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.
(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 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 upto the date of the account.”
27. From the above provisions, it is clear that the 1st Respondent as an administrator is expected to administer the estate and to render accounts as and when required. The Applicants have urged this Court to compel the 1st Respondent to render accounts and to shed light on the various disbursements made from the proceeds of the sale of L.R. No. Kisumu Municipality/Block11/85. As the monies were not distributed by the Court, I find the Applicants’ request merited. Hence the Public Trustee must render accounts regarding the proceeds from the sale of L.R. No. Kisumu Municipality/Block11/85 as the same formed part of the estate of the deceased. Once the accounts are rendered this Court will then be in a position to give directions on how the proceeds of the sale of L.R. No. Kisumu Municipality/Block11/85 would be distributed.
28. As regards the last issue and in view of the above observations, the discovery of the new asset namely sale proceeds from L.R. No. Kisumu Municipality/Block11/85, makes it imperative that the confirmed grant issued on the 8th October 2019 ought to be rectified so as to reflect the new property once the accounts have been rendered as sought and inclusion of the legal representatives to the deceased beneficiaries.
29. In the result I find merit in the Applicants application dated 23rd September 2022. The same is allowed in terms of prayers (3) and (4) thereof. The Public Trustee Kisumu is hereby ordered to render accounts relating to the sale proceeds from L.R. No. Kisumu Municipality/Block11/85 within (30) days. As parties are members of one family, I order that each do meet their own costs.
30. Orders accordingly.
Dated and delivered at Bungoma this 7th day of February 2025.