In the Estate of leah wanjiru waweru

1. The Application before Court is the Chamber Summons dated 17th July 2023 presented under Section 76 of the Law of Succession Act and rule 44 of the probate and administration rules that seeks the following orders-
a) Spent
b) THAT Daniel Waweru Gichuhi and Elizabath Muthoni Kamau be substituted as administrators of the Estate of the above mentioned deceased with the Applicant, FELISTER NYOKABI WAWERU
c) THAT DANIEL WAWEU GICHUHI and ELIZABETH MUTHONI KAMAU be and are hereby ordered to render a true and just account on the rental income received from the Estate from 18th June 2012 to date
d) THAT the ruling and order of the Court dated 3rd October 2014 be reviewed to state that the equal sistribution of parcel no. Dagoretti/ Riruta/ 5368 among the six beneficiaries be undertaken based on a survey map prepared by a licensed surveyor.
e) THAT the costs of the Application be in the cause.
2. The Application is supported by the Supporting Affidavit and Supplementary Affidavit of the Applicant sworn on 3rd July 2023 and 26th October 2023 respectively. The Respondents oppose the Application and have sworn affidavits in opposition by Daniel Waweru, Patrick Kinuthia and John Komu all sworn on 7th August 2023.
3. Directions were given that the Application be canvassed through written submissions, both parties complied. The Applicant’s submissions are dated 6th November 2023, while those of the Respondent are dated 29th November 2023.
SUMMARY OF APPLICANT’S CASE
4. The Applicant is a daughter  of the deceased and a beneficiary of the Estate. She contends that after the Court confirmed the Grant the Administrators/ Respondents herein have not taken measures to distribute the Estate.
5. That the demarcation as proposed has not been undertaken by a professional surveyor and therefore not aligned to the orders of the Court in its ruling delivered on 3rd October 2014.
6. In addition it is contended that the Administrators have failed to provide an account of the rental income of the Estate.
7. It is submitted that the Administrators having failed to transmit the estate the grant should be revoked.
8. She states that the Administrators delay is not excusable and she denies that she has in any way blocked them from finalising the administration and distribution to all the beneficiaries..
9. She avers that if appointed Administrator she will be able to execute the role notwithstanding that she is resident in the USA as she can travel to Kenya as required without hindrance. She takes the issue with the Administrator as relates to the DAGORETTI/ RIRUTA/ 5368 and states that the Administrators have failed to divide the land as per the certificate of Grant.
10. The Applicant states that the failure to distribute the estate has occasioned injury to some beneficiaries including herself.
11. In her submissions the Applicant identifies the following as the issues for determination
a) Whether the Administrators/ Respondents have justifiable grounds for failing to distribute the estate since the grant was confirmed on 3rd October 2104?
b) Whether the Administrators/ Respondents should account for the rental proceeds since the death of the deceased?
c) Whether proper survey should be carried out on DAGORETTI/ RIRUTA/5368 so that the same may be distributed equally among the six beneficiaries as per the confirmation ruling on of 3rd October 2014
d) Whether the Respondents should be removed by the  Court as adminsistrators of the estate in the circumstnces, and replaced by the Applicant?
12. On the 1st issue the Applicant contends that more than 6 months have lapsed since the issuance of the confirmed Grant, their conduct is therefore in violation of Section 83(g) of the Law of Succession Act and reliance based on the decision in  Re Estate of Wilfred Munene Ngumi (deceased) [2020] eKLR.
13. On the 2nd issue it is submitted that the Applicants have been collecting rent from the subject property and they have not accounted for it. Reliance is placed on the decision in Re Estate of Late Mwauro Makuro [2021] eKLR.
14. On the 3rd issue, the Applicant states the skech plan submitted by the Applicant which is referred to by the Court in the ruling of 3rd October 2014 was not prepared by a licensed surveyor and that the court should therefore direct that a proper survey be done.
15. On the 4th issue , it is submitted that the Administrators having failed to finalise the transmission after 9 years and also having failed to account for the rental income, the grant ought to be revoked.
SUMMARY OF RESPONDENT’S CASE
16. The Respondents contend that the distribution of the Estate is in accordance with the wishes of the deceased which she communicated prior to her death and affidavits have been sworn by those who were present when she expressed her wishes.
17. It is further alleged that the delay in finalizing has been occasioned by 3rd parties and not the administrators. It is contended that the Applicant being based in the USA would not be able to effectively administer the Estate.
18. The Respondents aver that the probate court having confirmed the Grant does not have the jurisdiction to determine conflicts on transmission
ANALYSIS AND DETERMINATION
19. I have carefully considered the pleadings filed herein, the respective submissions and discern the following as the issues for determination-
a) Whether the Grant herein should be revoked?
b) Whether the Court should review the Certificate of the Confirmation of Grant?
c) Whether the Administrators should render an account of the rental income collected on the Estate of the deceased?
d) Who should pay costs of the Application?
20. On the 1st Issue,  Whether the Grant should be revoked?
The basis upon which the revocation of the grant is sought is that the Administrators have failed to conclude the administration of the Estate ( in fact it has taken more than 9 years and still counting) and  secondly they have failed to provide an account for the rental income that they are collecting from the estate of the deceased.
21. Section 76  of the Law of Succession Act provides that
‘A grant of representation, whether or not confirmed, may at any time be    revoked or annulled if the court decides, either on application by an interested party or of its own motion-
  a. That the proceedings to obtain the grant were defective in substance;
b. That the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;
c. That the grant was obtained by means of untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;
d. That the person to whom the grant was made has failed, after due notice and without reasonable cause either-
(i)to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court has ordered or allowed; or
(ii) to proceed diligently with the administration of the estate; or
(iii) to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs(e) and g. of section 83 has produced any such inventory or account which is false in any material particular; e. The grant has become useless and inoperative through subsequent circumstances.’
22. The grounds upon which the Application is presented fall squarely within Section 76 (d). The Grant was confirmed in 2014 and Certificate of Grant issued on 13th October 2015 None of the reasons given by the Administrators explain the close to 9 year delay in finalizing the distribution if the Estate.
23. The question though is whether in the circumstances of this case the Grant should be revoked. I agree with the Applicant the delay is inordinate. That however is not the sole consideration.
24. The power to revoke or uphold a grant is a discretionary one. This principle was enunciated in the persuasive decision in Albert Imbuga Kisigwa vs Recho Kavai Kisigwa Succession Cause No. 158 of 2000 where Mwita J stated:-
“Power to revoke a grant is a discretionary power that must be exercised judiciously and only on sound grounds. It is not discretion to be exercised whimsically or capriciously. There must be evidence of wrong doing for the court to invoke section 76 and order to revoke or annul a grant. And when a court is called upon to exercise this discretion, it must take into account interests of all beneficiaries entitled to the deceased’s estate and ensure that the action taken will be for the interest of justice.”
25. In re Estate of the Late Mwaura Makuro (Deceased) [2021] eKLR, Ogola J, observed that the overarching duty of the Court is to uphold substantive justice and, in that case, notwithstanding a basis had been laid for revocation of the grant the court declined to do so. I agree with the reasoning of Ogola J and decline to revoke the grant and invoking the inherent powers of the Court under Rule 73 of the Probate and Administration rules direct that the Respondents complete administration of the Estate within 120 days or the Grant will be revoked and issue to the Applicant.
26. The 2nd Issue is whether the Court should revise the Certificate of Confirmation of Grant. The Applicant is not agreement with the distribution of the Estate as set out in the Certificate of Confirmation of Grant and states that it does not reflect the orders of Court issued on 3rd October 2014
27. The Order of the Court provided
14(a) Dagoretti/ Riruta/ 5363 (sic) shall devolve equally to all the six children of the deceased as per the drawings in the annexture marked DW1 in paragraph 7 of the Affidavit of the 1st and 3rd Administrators sworn on 10th July 2013(Emphasis mine)

28. I find that when the Grant as confirmed was based on the impugned map. The Court at the time of Confirming the Grant was of the view that the distribution was equal. In the event the Applicant was aggrieved her recourse was in filing an Appeal. No doubt she will face an uphill task to overturn the Grant nine years down the road.
29. The issues raised by the Respondent as regards the distribution of the Estate were considered by the Court in its ruling of 3rd October 2014, this Court cannot sit on Appeal on that decision.
30. The Applicant is aggrieved by the implementation of the decision of the Court. The jurisdiction of the probate Court is well settled by law and judicial precedent.  In the decision in Re Estate of Alice Mumbua Mutua (Deceased) [2017] KLR (Musyoka J) said as follows on the same:
[29]. …. The primary mandate of the probate court is distribution of the estate and once an order is made distributing the estate, the court’s work would be complete. The proposition therefore is that not every dispute over property of a dead person ought to be pushed to the probate court. The interventions by that court are limited to what I have stated above.”

31. In re Estate of Daniel Khasievera Anusu (Deceased) [2022] eKLR Musyoka J

[8]The High Court handled this matter while sitting as a probate court. Its remit as such is limited, to distribution of the assets of the estate. it pronounced itself on that in the ruling of 25th May 2017. The land is to be shared equally. A certificate of confirmation of grant issued. Once a grant is confirmed, the work or role of the probate court would largely be at an end. It is not the role or function or mandate of the probate court to superintend over how the land is to be thereafter distributed on the ground. The provisions of the Law of Succession Act, Cap 160, Laws of Kenya, and the Probate and Administration Rules do not deal with that. They do not provide for it. The probate court is pretty functus officio, once it confirms the grant.
[9] What follows confirmation of a grant is transmission of the assets to the named beneficiaries as per or according to the certificate of confirmation of grant. Transmission of property as per the certificate of confirmation of grant is a concept in land or property law. It is not regulated by succession law, hence the silence in the Law of Succession Act and the Probate and Administration Rules on it. It is not a succession matter whatsoever, and, therefore, transmission of assets as per the certificate of confirmation of grant should not tax the mind of the probate court at all. I even doubt whether the High Court has any jurisdiction to touch anything to do with transmission of property after confirmation of the grant.
32.  Having found that the Certificate of Confirmation of Grant is in consonance with the orders of the Court on 3rd October 2014  and guided by the above cited precedents, I find that the Court is not vested with the jurisdiction to determine disputes relating to the transmission of the Estate.
33. The 3rd issue is Whether the Administrators should render an account of the rental income collected on the Estate of the deceased?
34. Administrators/ personal representatives have an exclusive standing in relation to the assets of a deceased. Section 45 of the Law of Succession Act is categorical, that
Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.

35. In Benson Mutuma Muriungi v C. E. O, Kenya Police SACCO & another [2016] eKLR  the court defined ‘intermeddling’ as follows:
“There is no specific definition of the term intermeddling provided the Law of Succession Act. The Act simply prohibits taking possession of or disposing of, or otherwise intermeddling with, any free property of a deceased person by any person unless with express authority of the Act, any other written law or a grant of representation under the Act. But in my understanding, the use of wide and general terms such as; “for any purpose” and “or otherwise intermeddle with” in the Act portends that the category of the offensive acts which would amount to intermeddling is not heretically closed or limited to taking possession and disposing of the property of the deceased. I would include in that category such acts as; taking possession, or occupation of, or disposing of, transferring, exchanging, receiving, paying out, distributing, donating, charging or mortgaging, leasing out, interfering with lawful liens or charge or mortgage of the free property of the deceased in contravention of the Law of Succession Act or any other written law. I do not pretend to close the list either or to make it exhaustive. The list could be long. However, any act or acts which will dissipate or diminish or put at risk the free property of the deceased are acts of intermeddling in law.”

36. Based on the foregoing, it is on account of the privilieged position that the Administrators have, that they are the ones who the Court holds to account in the event that there are concerns about the management of the Estate. In this case the Respondents respond that they are unable to file accounts since some beneficiaries are collecting rent directly on units assigned them by the deceased. The provisions of Section 83 of the Law of Succession Act are clear on the duties of the Personal Representatives and these include-
d) 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;….
f) To produce to the Court, if required by the Court, either of its own motion or on the application of any onterested 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.

37. The Administrators cannot avoid this role. They have the responsibility to ensure that prior to transmission all the income of the Estate is preserved for the Estate. In this case it is evident that the Administrators have failed to ensure that there is no intermeddling with the estate. Some beneficiaries according to them have already taken possession and are collecting rental income of assets that are still in the name of the Deceased. It is an absolute muddle.
38.  The Administrators will provide a statement of accounts on the rental income that has accrued to the estate from 18th June 2012 to 31st December 2023 within 90 days.
39. In conclusion these are the final orders of the Court
a) The Administrators to conclude Administration of the Estate within 120 days
b) The Administrators to furnish the Court with Accounts of the rental income received from 18th June 2012 to 31st December 2023 within 90 days
c) In default of a)  above the Grant of Letters of Administration shall be revoked and issued to the Applicant FELISTER NYOKABI WAWERU
d) The matter will be mentioned on 10th July 2024 to confirm compliance and take further directions
It is so ordered






In the presence of
Mr. Oguttu for Applicant
Mrs Kiarie for Administrator/ Respondent