Skip to content
JudgmentIn the Estate of STEPHEN KIOKO MASILU6 min read

In the Estate of STEPHEN KIOKO MASILU

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


RULING

  1. There are two applications before me. There is the Summons dated 28/10/2022 seeking orders:

That the temporary grant of letters of administration issued to  Priscilla Kavivi Kioko and Esther Mwethya Kioko issued on 1st July, 2019 be rectified and amended to substitute the deceased co-petitioner, with her children Grace Syokau Harrison & Oscar  Kyalo Kioko as the new co-petitioners.

  1. The grounds set out in the similar affidavits of the applicants are that: That the Honourable court issued grant of letters of administration intestate to Priscilla Kavivi Kioko & Esther Mwethya Kioko on 01/07/2019; That before the co-administrators could petition for the full grant, the applicants’ mother, Priscilla Kavivi Kioko passed away on 05/01/2021; That their mother Priscilla Kavivi Kioko is survived by 3 children including themselves; That the estate of the late Stephen Kioko Mailu who is their father had not been fully administrated nor division of property effected necessitating the current application for substitution; That their late father was a polygamous man meaning that each household has to be represented in the administration of his estate; That the children of the late Priscilla Kavivi Kioko have agreed to appoint the two Grace Syokau Harrison and Oscar Kyalo Kioko as the co-petitioners to petition for the full grant alongside their step-mother Esther Mwethya Kioko being the co-petitioner so as to wilfully and fully administer the estate.
  2. The second application brought by Oscar Kyalo Kioko is the Chamber summons dated 4/9/2023 seeking orders: -
  3. That this Honourable court be pleased to order that the property and specifically Land Parcel Number NZAUI/KALAMBA/18 contained in the certificate of grant dated 11th November 2005 and revoked on 2nd July, 2018 do revert to the names of the deceased herein being STEPHEN KIOKO MAILU and the certificate of title issued pursuant to the said grant and issued in the names of the co-administrator/respondent be revoked.
  4. That a restriction order does issue prohibiting sale or transfer of the property and specifically land parcel Number NZAUI/KALAMBA/18 contained in the impugned certificate of grant dated 11th November, 2005 preserving the same until confirmation of grant of the above estate.
  5. That the costs of this application be in the cause.
  6. The Summons  is supported by the affidavit of Oscar Kyalo Kioko where he depones inter alia-That he is the co-administrator/applicant herein, well conversant with the facts of the above mentioned estate hence competent to swear the affidavit; That the written grant of representation of the estate of the late Stephen Kioko Mailu (deceased) was made to his co-administrator/respondent on 6th April 2005 and confirmed on 11th November 2005; That him and the rest of the beneficiaries of the estate of the late Stephen Kioko Mailu (deceased) were not involved in the said succession cause and applied for revocation of the said grant which was revoked by a ruling of the High Court on 2nd July. 2013; That via a consent dated 6th June 2019 grant of letters of administration intestate were issued to the co-administrator/respondent and the late Priscilla Kavivi Kioko on 1st July, 2019.
  7. There is a response by Esther Mwethya Kioko. She depones that she was advised by her advocates that the application is misconstrued, an abuse of court process, devoid of any merit and fatally defective and ought to be dismissed with costs; that it was filed by a party who has clearly not demonstrated his relationship with the deceased and/or disclosed his interest in the estate, in that the court did not issue directions in the summons dated 28th October, 2022.
  8. Parties filed written submissions which I have considered.
  9. The key issue is whether the applicant was appointed co-administrator of the estate of the deceased and whether the court can deal with his application.
  10. The record will show that the application seeking ‘substitution’ of the deceased administrator has never been heard. On 17th July 2023 the court (Hon Dulu J) set the application for substitution on the 27th April 2023 , that day te court was not sitting , matter was adjourned to 27th July 2023 when it came before me. Mr. Muthama was absent. Ms. Kyallo for the Co petitioner Esther sought a date for application dated 28th October 2022 and leave to file response. Leave was granted and the matter was fixed for 24th  September 2023 for compliance ot the appointment of Co administrators .
  11. The matter was mentioned on 21st September 2023. Mr. Muthama appeared for the Co-administrator applicant and Mr. Kithuka for the 1st Petitioner Respondent. Mr. Muthama told the court that they had filed another application dated 4th November 2023. Mr kithuka submitted that their replying affidavit was ready for filing and service. Mr.Muthama sought leave to file a further affidavit. He also sought prayer no. 2 on the application ‘to preserve the property’. There was no objection from the respondent and the same was allowed.
  12. There was no word about the application dated 28th October 2023 and it would appear that it was assumed that the applicants had already been appointed as administrators.
  13. Evidently that action never happened as the issue was never raised again.
  14. There is no question about it that without being appointed to be a legal representative the applicant cannot assign himself the position of a co petitioner in this matter. It is only upon being bestowed with these powers that he would be able to file the application dated 4/9/2023.
  15. I have considered the record and evidently there is no amended grant or grant issued where the applicant is co-administrator.
  16. It is therefore evident that the summons dated 28/10/2022 for ‘substitution’ of the deceased administrator was never heard and determined.
  17. So what happens? In my considered view this is one of the situations where the inherent power of the court must be exercised in the interests of justice. The family of the applicant was represented by their mother who was a co petitioner. She died. Upon her death there was no replacement of their representatives. In matters succession there is always that feeling, especially in polygamous families that each family must be represented so that their interests can be taken into account.
  18. That application for ‘substitution’ was not objected to by any party/ beneficiary, the co-petitioner had indicated that she would file a response to that application. None was ever filed. 
  19. This court treats that application as unopposed and the same ia allowed as prayed. The upshot is that Grace Syokau Harrison and Oscar Kyalo Kioko are appointed as co administrators to take over from their mother Priscilla Kavivi Kioko (deceased). In that event the grant issued to the Petitioner Esther Mwethya Kyalo and her deceased co petitioner be and is hereby revoked to remove the name of the deceased petitioner and to include the names of her two children. A fresh grant to issue accordingly.
  20. What happens to the second application?
  21. In the circumstances, and in the interests of justice the second application dated 4/9/2023 is deemed to be properly on record.
  22. The parties will now get a fresh opportunity to address the court on the issues raised therein. This is especially so because the respondent had approached the application on the basis that the applicant had no locus to bring it. It is only fair that the co administrator respondent gets the opportunity to respond to that application.
  23. Secondly, both counsel had agreed to the prayer on the preservation of the property pending the hearing and determination of the application. Any other order could prejudice the sole asset of the estate.
  24. Hence, the respondent will have 7 days hereof to file a response. The applicant has leave to file any further affidavit within 7 days of service if need be.
  25. Mention on 10th June 2024 for directions.
  26. The preservation order with respect to Nzaui/Kalamba/18 made by consent on 21st September 2023 remains in force
  27. Orders accordingly
  28. Each party to bear its own costs.

Dated signed and delivered, virtually  on 30th May 2024

……………………………….

MUMBUA T. MATHEKA

JUDGE