1. The grant with respect to the estate of the deceased person was issued by this court on 29th January 2024 to Kennedy Mulinge Mutonga, David Muema Mulinge and Mary Kilombe James Mulinge. The said grant was confirmed on 30th September 2024.
2. Vide the certificate of confirmation of grant, the deceased’s beneficiaries agreed to share the estate equally. Among the properties identified as belonging to the estate was Title No Mombasa/Block XI/653.
3. The administrators aver that the deceased had liabilities. Intending to settle the liabilities of the deceased's estate, the administrators proposed to sell Title No Mombasa/Block XI/653. That could not be done as the beneficiaries of the estate of Khalfan Macharia Mutonga alias Peter Macharia Mutonga (deceased), one of the children of the deceased, refused to execute the sale documents. Their refusal forced the administrator to file the instant application.
4. The Summons before the Court is dated 31st October 2024. The said application is supported by the annexed affidavit of the 1st administrator, Kennedy Mulinge Mutonga, sworn on even date. The deponent averred that it was necessary to sell the said plot so that the debts of the estate could be settled. Whatever remained would then be shared equally by the beneficiaries. The proposal was accepted by all beneficiaries of the estate of the deceased except with the exception of Mwanaisha Ali Yusuf and Ali Mulinge Khalfan. The said deponent urged that it would be just and expedient for this court to issue the orders sought as it was empowered to do so under Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules, 1980.
5. What then are the orders sought? The applicants seek the following orders:-
1 The administrators of the estate of Beth Wanjiru Mulinge (deceased) Kennedy Mulinge Mutonga, David Muema Mulinge and Mary Kilombe James Mulinge be authorized to sign the agreement for sale, transfer and any other relevant documents for the sale of Title No Mombasa Block XI/653 and the house erected thereon on behalf of Mwanaisha Ali Yusuf and Ali Mulinge Khalfan (as the administrators of the estate of Khalfan Macharia Mutonga alias Peter Macharia Mutonga);
2 The net proceeds from the sale of Title No. Mombasa/Block XI/653 and the house erected thereon be shared equally among the beneficiaries; and
3. The share of the proceeds of the sale due to Mwanaisha Ali Yusuf and Ali Mutonga Khalfan (as the administrators of the estate of Khalfan Macharia Mutonga alias Peter Macharia Mutonga ) be deposited in court.
6. Although Mwanaisha Ali Yusuf and alias Ali Mutonga Khalfan were served with the hearing notices and the application, they failed to appear or file documents in support of opposition to the application. The application, therefore, proceeded in their absence.
7. On the three occasions when the application came up for hearing, on 27th November and 18th December 2024 and 15th January 2025, they never appeared in court.
8. I have considered the application and the affidavit in support thereof. I am satisfied that there are good reasons for the administrators to sell the land so that debts can be paid. The respondents have not offered a reason for their refusal to sign the transfers despite being given ample opportunity. It appears that they want to frustrate the administration of the estate for no good reason.
9. It is necessary that the administration of the estate is completed. I am of the view that allowing the Application would go a long way towards achieving that end.
10. In my view, this court has the power under Section 47 of the Law of Succession Act to issue such orders as are necessary. The said power is restated in Rule 73 of the Probate and Administration Rules, 1980. I shall reproduce the said provision for emphasis.
Section 47 of the Act 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.”
Rule 73 of the Probate and Administration Rules,1980 states 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.”
11. The said Rules are permissive in nature and grant this court wide discretion to issue such orders as are necessary.
12. I am satisfied that a case has been made for issuance of the orders sought.
13. From the forgoing the orders that commend themselves to me and which are hereby issued are the following:-
a. The administrators of the estate of Beth Wanjiru Mulinge (deceased) Kennedy Mulinge Mutonga, David Muema Mulinge and Mary Kilombe James Mulinge are hereby authorized to sign the agreement for sale, transfer and any other relevant documents for the sale of Title No Mombasa Block XI/653 and the house erected thereon on behalf of Mwanaisha Ali Yusuf and Ali Mulinge Khalfan (as the administrators of the estate of Khalfan Macharia Mutonga alias Peter Macharia Mutonga);
b. The net proceeds from the sale of Title No. Mombasa/Block XI/653 and the house erected thereon, shall be shared equally among the beneficiaries; and
c. The share of the proceeds of the sale due to Mwanaisha Ali Yusuf and Ali Mutonga Khalfan (as the administrators of the estate of Khalfan Macharia Mutonga alias Peter Macharia Mutonga) shall be deposited in court.
14. As this is a succession matter involving close family members, I do not think awarding costs would be prudent. Costs shall, therefore, be borne by the parties themselves.
15. Orders accordingly.
Dated and signed at Mombasa this 22nd day of January 2025. Delivered virtually via Microsoft TEAMS.
2. Vide the certificate of confirmation of grant, the deceased’s beneficiaries agreed to share the estate equally. Among the properties identified as belonging to the estate was Title No Mombasa/Block XI/653.
3. The administrators aver that the deceased had liabilities. Intending to settle the liabilities of the deceased's estate, the administrators proposed to sell Title No Mombasa/Block XI/653. That could not be done as the beneficiaries of the estate of Khalfan Macharia Mutonga alias Peter Macharia Mutonga (deceased), one of the children of the deceased, refused to execute the sale documents. Their refusal forced the administrator to file the instant application.
4. The Summons before the Court is dated 31st October 2024. The said application is supported by the annexed affidavit of the 1st administrator, Kennedy Mulinge Mutonga, sworn on even date. The deponent averred that it was necessary to sell the said plot so that the debts of the estate could be settled. Whatever remained would then be shared equally by the beneficiaries. The proposal was accepted by all beneficiaries of the estate of the deceased except with the exception of Mwanaisha Ali Yusuf and Ali Mulinge Khalfan. The said deponent urged that it would be just and expedient for this court to issue the orders sought as it was empowered to do so under Section 47 of the Law of Succession Act and Rule 73 of the Probate and Administration Rules, 1980.
5. What then are the orders sought? The applicants seek the following orders:-
1 The administrators of the estate of Beth Wanjiru Mulinge (deceased) Kennedy Mulinge Mutonga, David Muema Mulinge and Mary Kilombe James Mulinge be authorized to sign the agreement for sale, transfer and any other relevant documents for the sale of Title No Mombasa Block XI/653 and the house erected thereon on behalf of Mwanaisha Ali Yusuf and Ali Mulinge Khalfan (as the administrators of the estate of Khalfan Macharia Mutonga alias Peter Macharia Mutonga);
2 The net proceeds from the sale of Title No. Mombasa/Block XI/653 and the house erected thereon be shared equally among the beneficiaries; and
3. The share of the proceeds of the sale due to Mwanaisha Ali Yusuf and Ali Mutonga Khalfan (as the administrators of the estate of Khalfan Macharia Mutonga alias Peter Macharia Mutonga ) be deposited in court.
6. Although Mwanaisha Ali Yusuf and alias Ali Mutonga Khalfan were served with the hearing notices and the application, they failed to appear or file documents in support of opposition to the application. The application, therefore, proceeded in their absence.
7. On the three occasions when the application came up for hearing, on 27th November and 18th December 2024 and 15th January 2025, they never appeared in court.
8. I have considered the application and the affidavit in support thereof. I am satisfied that there are good reasons for the administrators to sell the land so that debts can be paid. The respondents have not offered a reason for their refusal to sign the transfers despite being given ample opportunity. It appears that they want to frustrate the administration of the estate for no good reason.
9. It is necessary that the administration of the estate is completed. I am of the view that allowing the Application would go a long way towards achieving that end.
10. In my view, this court has the power under Section 47 of the Law of Succession Act to issue such orders as are necessary. The said power is restated in Rule 73 of the Probate and Administration Rules, 1980. I shall reproduce the said provision for emphasis.
Section 47 of the Act 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.”
Rule 73 of the Probate and Administration Rules,1980 states 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.”
11. The said Rules are permissive in nature and grant this court wide discretion to issue such orders as are necessary.
12. I am satisfied that a case has been made for issuance of the orders sought.
13. From the forgoing the orders that commend themselves to me and which are hereby issued are the following:-
a. The administrators of the estate of Beth Wanjiru Mulinge (deceased) Kennedy Mulinge Mutonga, David Muema Mulinge and Mary Kilombe James Mulinge are hereby authorized to sign the agreement for sale, transfer and any other relevant documents for the sale of Title No Mombasa Block XI/653 and the house erected thereon on behalf of Mwanaisha Ali Yusuf and Ali Mulinge Khalfan (as the administrators of the estate of Khalfan Macharia Mutonga alias Peter Macharia Mutonga);
b. The net proceeds from the sale of Title No. Mombasa/Block XI/653 and the house erected thereon, shall be shared equally among the beneficiaries; and
c. The share of the proceeds of the sale due to Mwanaisha Ali Yusuf and Ali Mutonga Khalfan (as the administrators of the estate of Khalfan Macharia Mutonga alias Peter Macharia Mutonga) shall be deposited in court.
14. As this is a succession matter involving close family members, I do not think awarding costs would be prudent. Costs shall, therefore, be borne by the parties themselves.
15. Orders accordingly.
Dated and signed at Mombasa this 22nd day of January 2025. Delivered virtually via Microsoft TEAMS.