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JudgmentIn the Estate of maweu muli13 min read

In the Estate of maweu muli

High Court at Makueni High Court · · Matheka, Teresia Mumbua

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MAKUENI

HC. P &A. NO.16 OF 2017

FORMERLY MACHAKOS SUCCESSION NO. 1100 OF 2012

IN THE MATTER OF THE ESTATE OF MAWEU MULI (DECEASED)

JULIUS KIMENGI KINUVE  …………………………………. APPLICANT

-VERSUS-

JOSEPH MUTULA MAWEU…………………………………RESPONDENT

RULING

  1. Maweu Muli died on 5/7/1974.
  2. According to the letter from the Chief Nzaui location dated 26/9/2012 he had a parcel of land – LR Nzaui/Matiliku/204 and nine wives. He was survived by 97 persons, a son – the respondent and grandchildren.
  3. The son and a grandson Julius Muinde Kinea filed the cause on 26/10/2012 as Machakos Succession Cause 1100 of 2012.
  4. P&A 41 grant of letters of administration intestate was issued on 14/2/2013 to Joseph Mutula Maweu and Julius Muinde Kinea.
  5. A certificate of confirmation of grant was issued on 21/7/2021 distributing the estate where the two administrators were given the whole property to hold in their behalf and on behalf of the all the other 96 beneficiaries.
  6. Thereafter a rectified grant was issued to rectify the name of one of the administrators to read Julius Kimengei Kinuve.
  7. On 14/7/2022, a Notice of Motion was filed by Julius Kimengei Kinuve seeking to remove Joseph Mutula Maweu as an administrator of the estate and to replace him with others namely: Nzuki Maweu, Shadrack Muia Kilai and Mornica Muviti Maleve on the ground that the “applicant” is disposure of the estate without the involvement or consultation of the co-administrators or beneficiaries and that the beneficiaries have consented to his removal. The Notice of Motion is brought under section 1A, 1B, 3A and 18 of the Civil Procedure Act, section 56 of the Laws of Succession Act.
  8. The said Joseph Mutula Maweu filed a replying affidavit on 31/8/2022. He depones:-
  • That I’m further advised by my advocate on record whose advise I verily believe as true that the prayers sought in the application are incapable of being granted for reasons that the estate of the deceased has since been administered by transfer of the deceased property from the name of the deceased to the two administrators but the applicant is, in collusion with a few beneficiaries of the deceased, including the proposed new administrators now out to defeat the conclusion of the process.
  • That it is therefore not true that I have refused to cooperate with the applicant and the beneficiaries to administer the deceased’s estate. To the contrary, I have had every intent to conclude the administration process but the applicant has been evasive and has willfully failed to cooperate with myself to conclude the administration process.
  • That the applicant’s refusal to cooperate is owing to the fact that he has been insisting on the beneficiaries of the deceased estate paying unjustified sums of money to get their shares of the deceased property, which suggestion I have declined for reasons that the same is not justified and is nothing but an attempt by the applicant to unjustly obtain monies from the beneficiaries.
  • That indeed, owing to my stance on the issue of collecting monies from the beneficiaries, the applicant has declined to cooperate in applying for consent from the Makueni Land Control Board to cause the said subdivisions. Despite all efforts, the applicant has blatantly refused to append his signature to the application for Land Control Board Consent to enable subdivision of the said parcel of land.
  • That the allegations under paragraph 4 of the supporting affidavit of Julius Kimengei  Kinuve dated 04/07/2022, that I have sold part of the  estate of the deceased are nothing but utter falsehoods meant to mislead or hoodwink the Honourable court in order that I am removed as an administrator so that the applicant may have a free hand in his clandestine activities.
  • That indeed the correct position is that Jeremiah Kisau to whom I’ m accused of having sold part of the deceased estate is already a beneficiary of the deceased estate who  is entitled to his share of the deceased estate by virtue of the grant confirmed by the Honourable court on 21/07/2021.
  • That I am further advised by my said advocate which advice I verily believe as true an administrator cannot be removed in the manner of the application without the same being first revoked hence the application is fatally and incurably defective.
  1. The application was heard by way of viva voce evidence.
  2. At the close of the respective cases, parties filed written submissions.
  3. The applicant alleges that the respondent sold six acres of the estate to one Jeremiah Ngunzi and one Ferdinand Kasina raised objection. It was alleged that monies were collected from beneficiaries by the respondent yet there are dedicated treasurers – one for the buyers and another for the beneficiaries.
  4. The applicant submitted further that the respondent confirmed that there were 38 beneficiaries and it is these who signed the minutes to remove him.
  5. Relying on Mary Wangari Kihiki vs- John Gichuhi Kinuthia & 2 Others [2015] e KLR – It is submitted that this court ought to exercise its discretion in the interests of justice. It is submitted that the intention of the law is to move the process of distribution of the estate forwards and transgression by administrators that might derail the process must be dealt with even if it means their removal. It is submitted that: The office of the administrator of the estate of a deceased person is an office built on the foundation of trust and goodwill. Breach of that position invites courts intervention to ensure justice is done to the beneficiaries and to protect the estates property.

It is submitted further that Section 47 of the Act Rule 73 of the probate and administrative rules grants inherent power of the court as follows: Nothing in this rule shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice to prevent abuse of the court”

The applicant relies on re Annah Nenchungei Koikai (deceased) [2021] e KLR, where  the court revoked the appointment of administrators on account to failure to diligently carry out and complete administration of the estate in accordance with the grant as confirmed by court.

  1. For the respondent it is submitted that once the grant is confirmed the role and function of the probate court comes to an end. This proposition is supported by In re Estate of Daniel Khasievera Anusu (Deceased) [2022] e KLR, where the court stated:

“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.

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.

  1. It is also submitted that the firm of Maanzo & Company is not on record properly for the applicant rendering the application incompetent, misconceived and incurably defective as offending Order 9 Rule 5 of the Civil Procedure Rules. It is submitted that he firm of Muumbi & Company Advocates had been on record for both parties and the firm of Maanzo never filed and served a notice of change of advocates as required by the law. This position is supported by Stephen Mwangi Kimote v Murata Sacco Society [2018] e KLR, where the judge stated ;

“Unless and until a notice of change of advocate is filed and duly served an advocate on record for a party remains the advocate for that party subject to removal from record at the instance of another party under Rule 12 of the same Order or withdrawal of the advocate under Rule 13 of the same order”.

  1. And further by Abdul East Africa Limited & 2 Others v Jean Farhat & 2 Others [2020] e KLR quoted in John Kipkoech Lelei v Stephen Kipchirchir Meli & 3 Others [2022] e KLR; the court further stated that:

“A reading of Order 9 Rule 5 shows that the provision is couched in mandatory terms. It therefore means that an advocate wishing to come on record for party to replace another advocate who is on record must file in the suit in question notice of change of advocates and serve it on every party in the suit who has entered appearance and on the advocate on record for that party before the purported change of advocate can be recognized in law. The rationale for this mandatory requirement is in my view quite straight forward. It is to ensure that parties in suit are notified of any change of advocates for any party in the suit to enable them identify which firm of advocates should be served with court processes on behalf of which party and who to engage with on matters pertaining to the suit. In my view, this is an important procedural requirement which ensures orderly conduct of court processes proceedings… Having not complied with the mandatory provisions of Order 9 Rule 5, it automatically follows that the firm of M/s Lehmann Associates was not formally on record for the applicants at the time it filed the instant application…. the bottom line is, its appointment not recognized in law… I am not persuaded that non-compliance with Order 9 Rule 5 and 6 of the Rules ought to be treated as a procedural technicality that can be addressed or cured by the provisions of Article 159(2)(d) of the constitution which requires courts to disregard procedural technicalities in the dispensation of substantive justice.

  1. I have carefully considered the application and the submissions and the  issue is whether the application has merit – on the following sub issued:-
  2. Whether the applicant has established any wrong doing to warrant the removal of the respondent.
  3. Whether the firm of Maanzo and Co, advocates is properly on record for the applicant.
  4. Whether after the certificate of confirmation of grant the probate and administration court ought to be involved in the distribution of the estate.
  5. A personal representative is defined as an executor or administrator as the case may be, of a deceased person.
  6. The Law of Succession Act provides for the powers and duties of personal representatives.
  7. The duties include – section 83(e) within 6 months of the grant to produce to court an inventory of the assets, liabilities all dealings of the estate and 83(g) within 6 months of the date of confirmation of the grant (unless otherwise extended by court) – complete the administration of the estate and produce a full and accurate account of the completed administration.
  8. The two administrators herein were issued with the grant in 2021 – to date both have not completed the administration of the estate.
  9. Section 95 of the Law of Succession Act provides for the offence by personal representatives: -  95(1) of the Law of Succession Act

Offences by personal representatives

(1) Any personal representative who, as regards the estate in respect of which representation has been granted to him-

(a) willfully or recklessly neglects to get in any asset forming part of the estate, misapplies any such asset, or subjects any such asset to loss or damage; or

(b) willfully fails to produce to the court any such inventory or account as is required by the provisions of paragraphs (e) and (g) of section 83; or

(c) willfully or recklessly produces any such inventory or account which is false in any material particular; or

(d) knowing or having reason to believe that the estate will prove to be insolvent, continues to administer it without petitioning for administration thereof in bankruptcy, shall be guilty of an offence, and shall be liable to a fine not exceeding ten thousand shillings, or to imprisonment for a term not exceeding one year, or to both such fine and imprisonment.

  1. Clearly the Law of Succession Act provides for circumstances in which a legal representative can be said to have failed to comply with his or her duties. In this case – the allegation is that the respondent has sold off part of the estate without the authority of the court or involvement of the other administrator. That would be a violation of his duties – but no evidence was placed before the court to establish that alleged fact. Secondly it was alleged that the respondent had collected monies from the beneficiaries which he has not accounted for, again,  an allegation that remains just that – not a single beneficiary was presented in court to prove this allegation.
  2. It was also alleged that the respondent refused to attend the Land Corporation Board and to sign or execute documents to effect the certificate of confirmation of grant. Again no evidence was availed to support this allegation. And in any event removal of the personal representative is not the solution. Courts have powers to ensure that the implementation of their orders, as orders are not made in vain. For instance, if indeed the respondent had refused to execute transmission documents, the court moved appropriately would grant orders appropriate to the circumstances upon hearing the parties. The applicant if indeed his interest was to move the distribution of the estate, he would have come before the court to seek the execution of the certificate of the confirmation of grant – by compelling the legal representative to perform his statutory duties. The applicant has done no such thing.
  3. Has the applicant established that the respondent is unsuitable administrator? In my view the two administrators have done their  job as per the Laws of Succession Act as required by section 71(2) and the proviso to section 71 showing the respective identities and shares of all persons beneficially entitled to the estate – what is happening now is the actual distribution of the ground -  in the P&A Rules a personal representative is a person “to whom a grant  of representation has been issued and is still substituting” These two are still the personal representatives of the estate of the deceased and have the duty and responsibility to complete the administration of the estate.
  4. The respondent whose removal is sought through this application is a son of the deceased and the one with priority among the beneficiaries. His alleged transgressions have not been proved and the intended ouster would not be in the interests of justice. He remains an administrator of the estate. The application is unsupported and lacks merit. It commends itself for dismissal.
  5. On the whether counsel is properly on record for the applicant it has been submitted and contended by the respondent that the firm of Maanzo & Company is not properly on record. I have not seen any rebuttal – I have not seen any notice of change of advocate and therefore the contention that the firm of Maanzo & Company is on record un procedurally remains uncontested and without evidence of notice of change or appointment, this renders the application incompetent.
  6. Considering that the application has no merit, it is dismissed.  Each party to bear its own costs.
  7. Does this court have a role post the certificate of confirmation of grant with respect to the distribution of the estate?
  8. Yes. This role is limited to the receiving of the inventory from the administrators on the completion of the administration on their part.
  9. The administrators herein were given the certificate of confirmation of grant in 2021. The six months have ended. My view is in order to bring this matter to a close, the administrators need to avail the court their inventory in compliance with section 83(g) of the Law of Succession Act by filing with the court a full and accurate account of the completed administration of the estate.
  10. To that end the administrators are hereby ordered to within 30 days hereof file with the court a full and accurate account of the completed administration of the estate.
  11. Mention on 31/10/2024 to comply with section 83(g) of the Law of Succession Act.

Dated, signed and delivered virtually on 20/9/2024

Mumbua T Matheka

Judge

CA: Ms Nelima/Ms Elizabeth

Mr. Hassan for the applicant

Mr. Muumbi for Respondent

    In the Estate of maweu muli In the Estate of maweu muli