1. Before me for determination are three Applications as follows: –
i) Summons under sections 74 and 76 of the Law of Succession Act; Rules 43, 44 and 49 of the Probate and Administration Rules dated 16th May 2023;
ii) Summons under sections 74 and 76 of the Law of Succession Act and Rules 43, 44 and 49 of the Probate and Administration Rules dated 30th May 2023; and
iii) Summons under section 76 of the Law of Succession Act; Rule 44 and 49 of the Probate and Administration Rules dated 22nd June 2023
2. The applications dated 16th and 30th May 2023 have been filed by the same party. In the application dated 16th May 2023 the applicant seeks the following prayers:
a) Spent
b) The Estate of Elijah Makau Kaseke (deceased) be protected in line with section 5 of the Law of Succession Act and all parties herein be hereby restrained from disposing off or otherwise intermeddling in any manner whatsoever with the property of the said estate
c) Spent
d) That the grant of letters of administration intestate issued to the said Philip Mutiso Makau (now deceased) together with Prignnias Mbinya Makau herein and partially confirmed be revoked,
e) That a fresh grant be issued to David Makau Kaseke and Prignnias Mbinya Makau as the administrators.
f) The costs of this application be in the cause
3. This application is premised on grounds that Philip Mutiso Makau was named as the first administrator as per the grant of the letter of the administration; that Philip Mutiso Makau died before the estate was fully distributed and before all disputes and issues in the matter were fully resolved; that the family of the first wife has agreed and wishes to have David Makau Kaseke to be named as the new administrator in place of Philip Mutiso Makau now deceased. The application is also supported by the affidavit of David Makau Kaseke sworn on 16th May 2023.
4. In the application dated 30th May 2023 the applicant seeks for orders that:
a) Spent
b) Spent
c) The estate of Elijah Makau Kaseke (deceased) be and is hereby protected in line with section 45 of the Law of Succession Act and all parties herein be and hereby restrained from disposing off or otherwise intermeddling in any manner whatsoever with the property of the said estate until the determination of the cause.
d) That status quo be maintained over all the assts of the estate of Elijah Makau Kaseke (deceased) pending hearing and determination of this application and whole cause.
e) That the grant of letters of administration intestate issued to the said Philip Mutiso Makau (now deceased) together with Prignnias Mbinya Makau herein and partially confirmed be revoked
f) That a fresh grant be issued to David Makau Kaseke and Prignnias Mbinya Makau as the administrators
g) The costs of this application be in the cause
5. The application is premised on grounds that Philip Mutiso Makau passed away on 17th March 2023 before the estate was fully distributed. The family of the first wife have agreed that David Makau Kaseke be named as the new administrator in place of Philip Mutiso Makau now deceased; that the 2nd administrator Prignnias Mbinya Makau has intermeddled with the assets of the estate by purporting to sell some of the assets and cutting down the trees. The application is further supported by the affidavit sworn by David Makau Maseke on 30th May 2023.
6. The third application dated 22nd June 2023 has been filed by Beatrice Loko Mbithi suing as an administrator of the estate of Andrew Maingi Makua. It seeks the following:
a) Spent
b) That the grant of letters of administration made to Philip Mutiso Makau (now deceased) and Mbinya Makau herein and partially confirmed on 19th January 2019 be revoked,
c) That the court be pleased to appoint Beatrice Loko Mbithi as a co-administrator for the first family of the deceased alongside the proposed first administrator.
d) That upon grant of prayer 2, a fresh letter of administration do issue in the names of David Makau Kaseke, Beatrice Loko Mbithi and Mbinya Makau
e) The costs of this application be in the cause
7. The application is premised on grounds that the applicant is the daughter of the late Andrew Maingi Makau who was a son of the late Elijah Makau Kaseke. The late Andrew Maingi Makau passed away on 22nd October 2002, and his children continued utilising the share that had been given to their late father from the estate of the late Elijah Makau Kaseke; the administrator during his lifetime had started side lining the applicant together with her cousins to prevent them from benefiting from the shares that belong to their late parents. They are apprehensive that unless appointed as administrators they will be dispossessed of what rightfully and legally belong to them. The application is supported by the affidavit sworn on 22nd June 2023 by Beatrice Loko Mbithi.
8. In essence all three applications are seeking to preserve the estate of Elijah Makau Kaseke; revoke the grant letters of administration made to Philip Mutiso Makau (now deceased) and Prignnias Mbinya Makau and the appointment of new administrators. Thus, for good order and to save on judicial time the applications shall be determined jointly. For ease of reference and to provide clarity in this Ruling; the applicant in the application dated 30th May 2023 and 16th May 2023 shall be referred to as the 1st applicant while the applicant in application dated 22nd June 2023 will be referred to as the 2nd applicant.
9. To enable the disposal of the applications, the parties herein were directed to file the respective responses and submissions. Notably, despite being given numerous chances, the 2nd administrator did not file any response and/or submissions.
10. The 1st applicant filed his submission dated 12th February 2024 to support his applications. He sought to rely on his submissions as well as the respective supporting affidavits dated 16th May 2023 and 30th May 2023. He submits that a grant was issued to two administrators namely Philip Mutiso Makau as the 1st administrator to represent the first house and Prignnias Mbinya Makau, the 2nd administrator to represent the second house. Unfortunately, the 1st administrator Philip Mutiso Makau passed away on the 17th March 2023 before the estate was fully distributed and before all the issues and disputes could be resolved. Thus, he urges that by the operations of the law the grant herein become useless and inoperative and the same exists only for purposes of revocation. They relied upon section 76 of the Successions Act on the case of Andrea Ruithibu R. Kanyari v Teresia Njoki Mbugu [2016] eKLR to urged the court to issue a fresh grant in line with the law and that David Makau Kaseke be named as the 1st administrator representing the 1st house.
11. It was also submitted that the 2nd administrator has intermeddled with the assets of the estate by purporting to sell the assets and putting all alleged purchasers thereon as well as cutting down mature trees. Hence, he urges the court to preserve the whole of the estate pending the final hearing and determination of this cause. They contended that the beneficiary of the 1st house stood to suffer irreparable damage if the application is not granted.
12. In response to the application dated 22nd June 2023 the 1st applicant filed a replying affidavit sworn on the 10th July 2023 opposing the application. He deponed that the application is misconceived, incompetent and bad in law, it ought to be dismissed with costs. It was asserted that the 2nd Applicant was not candid in his supporting affidavit and it was intended to mislead the court. It was the 1st applicant’s position that the 2nd applicant can only be substituted as an administrator in her capacity as a grandchild of the deceased and cannot stand in the priority of the children of the deceased. That the children of the first house have recommended their brother David Makau Kaseke to substitute the deceased administrator Philip Mutiso Makau. It was also deponed that further distribution of the estate will be done under the supervision of the court and accordingly no party will be prejudiced since they will all have an opportunity to canvas any issue before court. He urged the court to dismiss the application dated 22nd June 2023.
13. The 2nd applicant did not file any submissions pursuant to the court’s directions.
14. Upon consideration of the applications and submissions the following issues arise for determination; whether to revoke the grant letter of administration issued to Philip Mutiso Makua (now deceased) together with Prignnias Mbinya Makau and partially confirmed and whether to issue fresh grant letter of administration and to whom? Upon making this determination, the court will consider whether to make any further orders to preserve the estate of the deceased,
15. It is not in dispute that the 1st administrator herein is deceased. Section 81 of the Law of Succession, contemplates that in the event of the death of one or more of joint administrators, where there are several administrators, the surviving administrator or administrators would then have the mandate to continue with their duties to completion without the need to replace the deceased ones. The section states as follows:-
Upon the death of one or more of several executors or administrators to whom a grant of representation has been made, all the powers and duties of the executors or administrators shall become vested in the survivors or survivor of them:…
16. Guided by the above position, where one administrator has died, by virtue of the provision of section 81 of the Law of Succession Act as in the present instance, the powers of administrator became vested upon the surviving administrator in this case Prignnias Mbinya Makau. Had both administrators been deceased then the grant would have become inoperative and subject to revocation.
17. However, considering the special circumstance of the instant case, to wit that the succession cause is at an advance stage with the grants having been partially confirmed by a decision of this court rendered on the 19th January 2021; the are two houses and the deceased administrator represented one house, there are allegations of meddling with the estate it is only fair and just that the first house of the deceased be allowed to appoint a fresh administrator to substitute the deceased administrator without necessarily revoking the grant.
18. As to whom should be appointed to substitute the deceased administrator, this court makes reference to section 66 of the law of Succession Act which gives the order of preference as to whom a grant of letters of administration should be made. As rightfully stated by the 1st applicant herein, the 2nd applicant cannot rank first in priority over the children of the deceased. Besides, while the 2nd Applicant claims to be an administrator of the estate of the late Andrew Maingi Makau, no letters of administration have been availed before this court to prove that assertion.
19. As such, while the court appreciates that the 2nd applicant has an interest in the estate, this is only as beneficiary through the share of her deceased parent (Andrew Maingi Makau) who was the child of the deceased. This court therefore declines to appoint the 2nd Applicant as an administrator.
20. In any case this court also notes that the estate of Andrew Maingi Makau remains part of the beneficiaries of the estate of Elijah Makau Kaseke just like the other beneficiaries. Furthermore, the beneficiaries will still have a chance to hold the administrators accountable and to raise any objections regarding their actions or any misconduct.
21. Regarding the appointment of David Makau Kaseke as an administrator, this court acknowledges the 1st applicant’s claim that he obtained consent from all beneficiaries of the first house. However, no consent in the prescribed form were attached to the application, no evidence has been presented to confirm that this consent was actually given. As a result, this court is not prepared at this time to grant the prayer sought.
22. In the same breadth, with all the allegations of intermeddling by the 2nd administrator made by both applicants, it is only proper that the estate be preserved pending confirmation of grant. The court notes that despite the allegations on meddling, none of the applicants have called for the removal of the second administrator. This court reiterates that any administrator of an estate is duty bound to undertake the administration in accordance with the law for the benefit of all the administrators pending confirmation. The Court retains supervisory jurisdiction over administration process including issuance of sanctions to any administrator for any legal transgressions.
23. From the foregoing, this court directs that:
(i). The Application dated 22nd June 2023 is hereby dismissed with no orders as to costs
(ii). The Applications dated 16th and 30th May 2023 are hereby allowed to the extent that all the beneficiaries of the first house are allowed to substitute Philip Mutiso Makau (now deceased) as an administrator of the estate of Elijah Makau Kaseke.
(iii). All the beneficiaries of the first house, to appear before the court to confirm they agree to the appointment of David Makau Kaseke as an administrator to represent the interest of the first house.
(iv). The 2nd administrator Prignnias Mbinya Makau shall remain the administrator representing the 2nd house pending the appointment of the administrator representing the first house or as the court may otherwise direct.
(v). The second administrator to render an account as to the administration undertaken since the death of the co-administrator and file the same on or before the next mention date.
(vi). Each party shall bear its own costs