REPUBLIC OF KENYA
IN THE HIGH COURT AT МАСНАKOS
SUCCESSION CASE NO. E075 OF 2024
IN THE MATTER OF THE ESTATE OF GEORGE MULI MWALABU alias PAUL GEORGE MULI MWALAVU, GEORGE MUTUA MWALABU, GEORGE MWALABU (DECEASED)
KENNETH MWALABU PAUL ...............................................1ST APPLICANT/CITOR
MUTUA GEORGE MWALABU ............................................2ND APPLICANT/CITOR
CAROLINE MWALABU SEWE ............................................3RD APPLICANT/CITOR
TAMARA MWIKALI MULI ...................................................4TH APPLICANT/CITOR
-VS-
CARLA WANZAU MWALABU ..........................................1ST RESPONDENT/CITEE
GLADYS MUTHUE MWALABU........................................2ND RESPONDENT/CITEE
IMMANUEL KALELI MWALABU.......................................3RD RESPONDENT/CITEE
ELIZABETH MWALABU ..................................................4TH RESPONDENT/CITEE
RULING
1. Before me is a Chamber Summons application dated 29/10/2024 by the Applicants/Citors seeking prayers under Section 70 of the Law of Succession Act Rules 21, 22 7.3 of the Probate and Administration Rules Sections 1A, 1B and 3A of the Civil Procedure Act that:-
a. Spent.
b. A citation does issue to the 1st to 4TH Respondents/ Citees being beneficiaries of the deceased Estate to consent to the Applicant's to Petition for Letters of Administration Intestate of the Estate of GEORGE MULI MWALABU alias PAUL MWALAVU. GOERGE MULI MWALAVU, GEORGE MWALABU (DECEASED).
c. That Kenneth Mwalabu Paul being the representative of the first family and Carla Wanzau Mwalabu from the second family be appointed as the administrators of the deceased estate by this court.
2. The application is based the grounds on the face thereof and is supported by the affidavit sworn jointly by Kenneth Mwalabu Paul, Mutua George Mwalabu, Caroline Mwalabu Sewe & Tamara Mwikali Muli, the Applicants herein. The Applicants contend that the Estate of GEORGE MULI MWALABV alias PAUL MWALAVU. GOERGE MULI MWALAVU. GEORGE MWALABU (DECEASED) who died on the 29th day of July, 2024 remains unadministered to the detriment of the Applicants herein.
3. The Respondents/Citees have failed and/or avoided to cooperate with the Applicants herein to file a Petition for grant of Letters of Administration intestate in order to protect the Estate of the deceased hence necessitating the filing of this application and the citation.
4. The 4th Respondent has intermeddled with the Estate property by forcefully allocating and taking possession of the house at (Woodley Estate) without the consent of the Estate beneficiaries.
5. The creditors to the deceased’s Estate intend to execute the judgments of the court obtained against the deceased. These circumstances require the appointment of administrators to protect and defend the deceased Estate.
6. That in the absence of administrators the deceased Estate remains at great risk of being wasted and intermeddled with by third parties thus the urgent desire to appoint administrators herein.
7. It is fair and in the interest of justice that the orders sought herein be allowed to protect the deceased Estate and have the same be determined under the Succession Act Laws of Kenya.
8. The 1st Applicant Kenneth Mwalabu Paul filed a replying affidavit sworn on 25th April 2025 in which he averred that he had read and understood the affidavit dated 25th February 2025 filed by Elizabeth Ndunge Mwalabu. This is at paragraph 2 of the said replying affidavit. I have perused through the CTS and the physical court file but I have been unable to locate the said affidavit by Elizabeth Ndunge Mwalabu.
9. The 1st and the 4th Applicants swore Replying Affidavits both dated 25th April 2025 detailing the ability and knowledge that the 1st Applicant has on many issues touching on the deceased’s Estate that some of the beneficiaries do not have and which makes him a suitable administrator of the Estate.
10. The 1st Applicant has deponed that he read and understood the Affidavit dated the 25th day of February,2025 by Elizabeth Ndunge Mwalabu wherein she opposes the appointment of the 1st Applicant as an administrator representing the first family.
11. From the onset the said affidavit is devoid of any merit, it is frivolous and full of falsehoods aimed at misleading the court and drawing unnecessary attention at this level of the proceedings.
12. The deponent Elizabeth Ndunge Mwalabu failed to demonstrate to this court any justifiable grounds upon which the 1st Applicant should not be appointed as an administrator, yet she is aware that at the virtual family meeting held on the 10th day of January,2025 (which the said Elizabeth Nduge Mwalabu attended) the beneficiaries from the first family elected the 1st Applicant to represent them as an administrator.
13. The said Elizabeth Ndunge Mwalabu in her entire affidavit has intentionally failed to disclose to this court material facts upon which she is incapable of being appointed as an administrator of the Estate. These facts ought to be brought to the attention of the court as follows;-
i) The said Elizabeth Ndunge Mwalabu lives outside the jurisdiction of this court. She is a resident of Melbourne Australia where she has lived from 1998 when she left Kenya for studies.
ii) She got married here in Kenya on the 3rd day of December,2003 to David Maczkowiak an Australian citizen. Thereafter she moved back to Australia where she has lived for over 20 years with her family.
iii) Elizabeth Mwalabu has no knowledge concerning the deceased Estate. She has no understanding of the affairs of the deceased Estate to which the role of an administrator is grounded. She does not know any facts relating to the location of the deceased properties or creditors.
iv) Based on her residence outside the jurisdiction of this court she is isolated from the rest of the family members as she has no positive relationship with the beneficiaries of the first family.
v) On account of her poor relations with the rest of the beneficiaries in the first family, she exited the family what's up chat group on the 21st day of January,2025 while being aware that the said platform is used by the beneficiaries to jointly share ideas and make decisions that affect the Estate.
vi) Suffice to note that even when the said Elizabeth Ndunge Mwalabu visits Kenya she does not talk to or meet with the family members. She is completely alienated from the family, a fact that caused the first family members not to appoint her to represent them as an administrator.
14. It is deponed that all the surviving widows are not participating in these proceedings as they were legally divorced with the deceased herein at the time of his death.
Analysis and determination
15. I have carefully considered the application and the affidavits filed thereto. The issue I frame for determination is whether the 4th Respondent /Citee can be an administrator of the deceased’s Estate in this cause.
16. The undisputed facts of this cause are that the Applicants and the Respondents are siblings and children of the deceased herein born out of two households. The Applicants and the 4th Respondent are children of the 1st household while the 1st to 3rd Respondents are children of the 2nd household. The Applicants have agreed on the 1st Applicant Kenneth Mwalabu Paul to being the Administrator of the Estate on their behalf although the 4the Respondent appears not to be in agreement with that appointment and contends that she is the most suitable to represent the 1st household as the Administrator of the Estate.
17. The second household children have agreed on Carla Wanzau Mwalabu, the 1st Respondent to being the Administrator of the Estate on their behalf.
18. The deceased had legally divorced his two wives before his demise hence none of them is a party in these proceedings.
19. It is asserted that the 4th Respondent is not suitable to be appointed as Administrator of the Estate as she resides in Melbourne Australia where she has lived from 1998 and is now married there. That she rarely comes to Kenya and when she does, she does not talk to or meet with the family members. She is completely alienated from the family and does not have cordial relationship with the rest of the beneficiaries. She has no knowledge or understanding of the affairs concerning the deceased’s Estate unlike the 1st Applicant who was unanimously appointed by all the members of the 1st household to be the Administrator of the Estate on their behalf.
20. It is further asserted that the 4th Respondent has been intermeddling with the Estate particularly with the house at Woodley Estate Ngong Road, Nairobi.
21. S.66 of the Laws of Succession Act (Cap 160 Laws of Kenya), gives the court the discretion to appoint an administrator.
S.66 aforesaid states as follows:-
“When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference:-
a. surviving spouse or spouses, with or without association of the other beneficiaries;
b. other beneficiaries entitled to intestacy, with priority according to their respective beneficial interests as provided by Part V;
c. the Public Trustee and
d. creditors.”
22. On the evidence on record which has not been rebutted by the 4th Respondent, I find grave unsuitability of the 4th Respondent in this case to administer the Estate of the deceased in the best interests of all concerned. Accordingly, I make the following orders:
a. I hereby appoint and confirm KENNETH MWALABU PAUL and CARLA WANZAU MWALABU to be the Administrators of the Estate of GEORGE MULI MWALABU alias PAUL GEORGE MULI MWALAVU, GEORGE MUTUA MWALABU, GEORGE MWALABU (Deceased);
b. The appointed Administrators hereinabove to proceed and Petition for letters of administration intestate of the Estate of GEORGE MULI MWALABU alias PAUL GEORGE MULI MWALAVU, GEORGE MUTUA MWALABU, GEORGE MWALABU (Deceased).
c. A mention date to be fixed to keep track of progress of the cause.
d. There shall be no order as to costs
23. I so order.
RULING WRITTEN, DATED AND SIGNED AT MACHAKOS THIS 10TH JULY 2025.
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 10TH JULY 2025
In the presence of :
Mr. Njuguna for 4th Respondent/Citees
Kakinga for the 1st House Respondents/Citors
Mr. Nzioka for 4th Respondent
Milly.. Court Assistant
IN THE HIGH COURT AT МАСНАKOS
SUCCESSION CASE NO. E075 OF 2024
IN THE MATTER OF THE ESTATE OF GEORGE MULI MWALABU alias PAUL GEORGE MULI MWALAVU, GEORGE MUTUA MWALABU, GEORGE MWALABU (DECEASED)
KENNETH MWALABU PAUL ...............................................1ST APPLICANT/CITOR
MUTUA GEORGE MWALABU ............................................2ND APPLICANT/CITOR
CAROLINE MWALABU SEWE ............................................3RD APPLICANT/CITOR
TAMARA MWIKALI MULI ...................................................4TH APPLICANT/CITOR
-VS-
CARLA WANZAU MWALABU ..........................................1ST RESPONDENT/CITEE
GLADYS MUTHUE MWALABU........................................2ND RESPONDENT/CITEE
IMMANUEL KALELI MWALABU.......................................3RD RESPONDENT/CITEE
ELIZABETH MWALABU ..................................................4TH RESPONDENT/CITEE
RULING
1. Before me is a Chamber Summons application dated 29/10/2024 by the Applicants/Citors seeking prayers under Section 70 of the Law of Succession Act Rules 21, 22 7.3 of the Probate and Administration Rules Sections 1A, 1B and 3A of the Civil Procedure Act that:-
a. Spent.
b. A citation does issue to the 1st to 4TH Respondents/ Citees being beneficiaries of the deceased Estate to consent to the Applicant's to Petition for Letters of Administration Intestate of the Estate of GEORGE MULI MWALABU alias PAUL MWALAVU. GOERGE MULI MWALAVU, GEORGE MWALABU (DECEASED).
c. That Kenneth Mwalabu Paul being the representative of the first family and Carla Wanzau Mwalabu from the second family be appointed as the administrators of the deceased estate by this court.
2. The application is based the grounds on the face thereof and is supported by the affidavit sworn jointly by Kenneth Mwalabu Paul, Mutua George Mwalabu, Caroline Mwalabu Sewe & Tamara Mwikali Muli, the Applicants herein. The Applicants contend that the Estate of GEORGE MULI MWALABV alias PAUL MWALAVU. GOERGE MULI MWALAVU. GEORGE MWALABU (DECEASED) who died on the 29th day of July, 2024 remains unadministered to the detriment of the Applicants herein.
3. The Respondents/Citees have failed and/or avoided to cooperate with the Applicants herein to file a Petition for grant of Letters of Administration intestate in order to protect the Estate of the deceased hence necessitating the filing of this application and the citation.
4. The 4th Respondent has intermeddled with the Estate property by forcefully allocating and taking possession of the house at (Woodley Estate) without the consent of the Estate beneficiaries.
5. The creditors to the deceased’s Estate intend to execute the judgments of the court obtained against the deceased. These circumstances require the appointment of administrators to protect and defend the deceased Estate.
6. That in the absence of administrators the deceased Estate remains at great risk of being wasted and intermeddled with by third parties thus the urgent desire to appoint administrators herein.
7. It is fair and in the interest of justice that the orders sought herein be allowed to protect the deceased Estate and have the same be determined under the Succession Act Laws of Kenya.
8. The 1st Applicant Kenneth Mwalabu Paul filed a replying affidavit sworn on 25th April 2025 in which he averred that he had read and understood the affidavit dated 25th February 2025 filed by Elizabeth Ndunge Mwalabu. This is at paragraph 2 of the said replying affidavit. I have perused through the CTS and the physical court file but I have been unable to locate the said affidavit by Elizabeth Ndunge Mwalabu.
9. The 1st and the 4th Applicants swore Replying Affidavits both dated 25th April 2025 detailing the ability and knowledge that the 1st Applicant has on many issues touching on the deceased’s Estate that some of the beneficiaries do not have and which makes him a suitable administrator of the Estate.
10. The 1st Applicant has deponed that he read and understood the Affidavit dated the 25th day of February,2025 by Elizabeth Ndunge Mwalabu wherein she opposes the appointment of the 1st Applicant as an administrator representing the first family.
11. From the onset the said affidavit is devoid of any merit, it is frivolous and full of falsehoods aimed at misleading the court and drawing unnecessary attention at this level of the proceedings.
12. The deponent Elizabeth Ndunge Mwalabu failed to demonstrate to this court any justifiable grounds upon which the 1st Applicant should not be appointed as an administrator, yet she is aware that at the virtual family meeting held on the 10th day of January,2025 (which the said Elizabeth Nduge Mwalabu attended) the beneficiaries from the first family elected the 1st Applicant to represent them as an administrator.
13. The said Elizabeth Ndunge Mwalabu in her entire affidavit has intentionally failed to disclose to this court material facts upon which she is incapable of being appointed as an administrator of the Estate. These facts ought to be brought to the attention of the court as follows;-
i) The said Elizabeth Ndunge Mwalabu lives outside the jurisdiction of this court. She is a resident of Melbourne Australia where she has lived from 1998 when she left Kenya for studies.
ii) She got married here in Kenya on the 3rd day of December,2003 to David Maczkowiak an Australian citizen. Thereafter she moved back to Australia where she has lived for over 20 years with her family.
iii) Elizabeth Mwalabu has no knowledge concerning the deceased Estate. She has no understanding of the affairs of the deceased Estate to which the role of an administrator is grounded. She does not know any facts relating to the location of the deceased properties or creditors.
iv) Based on her residence outside the jurisdiction of this court she is isolated from the rest of the family members as she has no positive relationship with the beneficiaries of the first family.
v) On account of her poor relations with the rest of the beneficiaries in the first family, she exited the family what's up chat group on the 21st day of January,2025 while being aware that the said platform is used by the beneficiaries to jointly share ideas and make decisions that affect the Estate.
vi) Suffice to note that even when the said Elizabeth Ndunge Mwalabu visits Kenya she does not talk to or meet with the family members. She is completely alienated from the family, a fact that caused the first family members not to appoint her to represent them as an administrator.
14. It is deponed that all the surviving widows are not participating in these proceedings as they were legally divorced with the deceased herein at the time of his death.
Analysis and determination
15. I have carefully considered the application and the affidavits filed thereto. The issue I frame for determination is whether the 4th Respondent /Citee can be an administrator of the deceased’s Estate in this cause.
16. The undisputed facts of this cause are that the Applicants and the Respondents are siblings and children of the deceased herein born out of two households. The Applicants and the 4th Respondent are children of the 1st household while the 1st to 3rd Respondents are children of the 2nd household. The Applicants have agreed on the 1st Applicant Kenneth Mwalabu Paul to being the Administrator of the Estate on their behalf although the 4the Respondent appears not to be in agreement with that appointment and contends that she is the most suitable to represent the 1st household as the Administrator of the Estate.
17. The second household children have agreed on Carla Wanzau Mwalabu, the 1st Respondent to being the Administrator of the Estate on their behalf.
18. The deceased had legally divorced his two wives before his demise hence none of them is a party in these proceedings.
19. It is asserted that the 4th Respondent is not suitable to be appointed as Administrator of the Estate as she resides in Melbourne Australia where she has lived from 1998 and is now married there. That she rarely comes to Kenya and when she does, she does not talk to or meet with the family members. She is completely alienated from the family and does not have cordial relationship with the rest of the beneficiaries. She has no knowledge or understanding of the affairs concerning the deceased’s Estate unlike the 1st Applicant who was unanimously appointed by all the members of the 1st household to be the Administrator of the Estate on their behalf.
20. It is further asserted that the 4th Respondent has been intermeddling with the Estate particularly with the house at Woodley Estate Ngong Road, Nairobi.
21. S.66 of the Laws of Succession Act (Cap 160 Laws of Kenya), gives the court the discretion to appoint an administrator.
S.66 aforesaid states as follows:-
“When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference:-
a. surviving spouse or spouses, with or without association of the other beneficiaries;
b. other beneficiaries entitled to intestacy, with priority according to their respective beneficial interests as provided by Part V;
c. the Public Trustee and
d. creditors.”
22. On the evidence on record which has not been rebutted by the 4th Respondent, I find grave unsuitability of the 4th Respondent in this case to administer the Estate of the deceased in the best interests of all concerned. Accordingly, I make the following orders:
a. I hereby appoint and confirm KENNETH MWALABU PAUL and CARLA WANZAU MWALABU to be the Administrators of the Estate of GEORGE MULI MWALABU alias PAUL GEORGE MULI MWALAVU, GEORGE MUTUA MWALABU, GEORGE MWALABU (Deceased);
b. The appointed Administrators hereinabove to proceed and Petition for letters of administration intestate of the Estate of GEORGE MULI MWALABU alias PAUL GEORGE MULI MWALAVU, GEORGE MUTUA MWALABU, GEORGE MWALABU (Deceased).
c. A mention date to be fixed to keep track of progress of the cause.
d. There shall be no order as to costs
23. I so order.
RULING WRITTEN, DATED AND SIGNED AT MACHAKOS THIS 10TH JULY 2025.
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 10TH JULY 2025
In the presence of :
Mr. Njuguna for 4th Respondent/Citees
Kakinga for the 1st House Respondents/Citors
Mr. Nzioka for 4th Respondent
Milly.. Court Assistant