IN THE MATTER OF ESTATE OF DAVID MWAURA KARABA

1. There are two applications for determination. There is the Summons dated 29th May 2023 presented by Mary Wakari Gutuba, a Co-Administrator. The Application is opposed by the 2nd Respondent who is also a Co-Administrator. The other Application is the Amended Summons dated 22nd May 2023 presented by Wingrace Wanjiru Wambugu, a Co Administrator. The Application is opposed by  Mary Wakari Gutuba.

2. The Court directed that the Applications be heard concurrently and be canvassed by written submissions. Both parties complied and have filed their written submissions.

3. Both Applications stem from the decision of Hon. Lady Justice Stella Mutuku delivered on 27th September 2021. In that Judgment the Court upon determining the beneficiaries and assets of the estate as well as the mode of distribution postponed confirmation of the grant for 60 days, to allow the Administratrixes time to commission a valuation report of the entire estate.

4. Soon after the delivery of the judgment the Applicant, Mary Wakari lodged an Appeal and applied for stay of execution pending determination of the Appeal. By ruling delivered on 29th June 2022, Muchelule J (as he then was) granted a conditional stay, staying the judgment for 120 days, to allow the Appellant move to the Court of Appeal prosecute her appeal or if necessary approach the Court of Appeal for Stay.

5. The Court also directed that the 2nd Respondent (Wingrace Wanjiku Wambugu) could proceed to have the estate valued after the expiry of the 120 days if the Court of Appeal does not order otherwise.

6. In the Application dated 29th May 2023, the Applicant seeks the following Orders-

a) Spent

b) Spent

c) Spent

d) THAT the Honourable Court be pleased to enlarge and or extend time in respect to the orders issued by Justice Muchelule on 29th June 2022.

e) THAT the Honorable Court do stay and or set aside the valuation exercise now being conducted by the respondents to the exclusion of the applicant pending the hearing and determination of Appeal No. E781 of 2022

7. In her Submissions, the Applicant contends that the orders sought will ensure that the Appeal pending before the Court of Appeal is not rendered nugatory.

8. The Applicant relies on the decisions in Housing Finance Company of Kenya v Sharok Kher Mohammed Ali Hirji & Anor [2015] eKLR and Salat v Independent Electoral & Boundaries Commission & 7 others [2014] eKLR.

9. In opposition to the Application the Respondents submit that the orders having lapsed they are not available for extension. Reliance is placed on the decisions in National Security Fund v John Ochieng Opiyo HCCA No. 510 of 2005 and Timon Otieno Mboga v Kenya Forest Service [2016] eKLR.

10. It is further submitted that the Applicant has slept on her rights and therefore cannot avail herself of an equitable remedy and cites the decision in Equatorial Commercial Bank Limited vs. Pickwel and Deal Limited & 2 Others [2019] eKLR

11. On the 2nd Prayer it is submitted the Application is not made in good faith as the Respondent was compelled to move the Court for directions resulting in the appointment of the Chief Government Valuer after the Applicant was non-responsive when requested to jointly nominate a valuer. It is submitted that the conduct of the Applicant is intended to frustrate Court orders and therefore she should not obtain the reliefs sought. Reliance is placed on the decision in Kyangavo vs Kenya Commercial Bank Limited and Another [ 2004] 1KLR 126.

12. Finally, the Applicant takes issue with the Conduct of Counsel in the matter and submits that the Counsel has fallen short of expectations of him as an officer of the Court.

13. In the Amended Summons dated 22nd May 2023, the Applicant seeks the following orders-

a) Spent

b)  That this Honourable Court do order the Branch Manager for Garden Plaza Branch of KCB Bank Kenya to issue a Banker’s Cheque for Kshs. 168000 from the Estate Account No. 1179310772 held in the joint names of the Administrators of the Estate payable to State Department for Lands & Physical Planning

c) THAT upon payment of the valuation fees under (2) above the Chief Government Valuer to facilitate the release of the valuation report.

d) THAT the orders of 18th December 2018 appointing Tom Odhiambo Marao of Blue Spring Estate Management to be the Estate Agent be varied and set aside.

e) THAT pursuant to the orders of 29th June, 2022 the Court appointed Estate Agent Tom Odhiambo Marao of Blue Spring Estate Management do submit before this Honourable Court and file, under oath, a statement of account from the date of his appointment  to- date, while stating all the rental collections received or rental incomes on month- to – month basis, all expenses incurred and any instructions from any of the administrators.

f) THAT this Honourable Court do appoint either of the entities below as the Estate Agent to manage the Estate properties, being

a) Cornerstone Real Estate Limited

b) Chuma Mbili Properties

c) Acute Realtors Management Limited, or

d) Gimco Limited

g) THAT this Honourable Court do grant such further or other orders as it may deem fit under the circumstances of this cause

h) That the cost of this Application be in the cause.

14. On the payment of the Valuer’s fees it is submitted that the same was incurred by the Court nominated Valuer. That the Respondent has all along been non-responsive and that her actions are aimed at frustrating the other beneficiaries of the estate. It is submitted that vide Section 83 (c) of the Law of Succession Act, the Respondent is obligated to pay debts owed by the Estate and reference is made to the decision in  Estate of Joseph Eric Owino alias Joseph Eric Owino Nyaburi- Deceased [2022]eKLR

15. It is submitted further submitted that the Estate Agent has not been forthcoming on rental income received and has also failed to account for the rental income and therefore needs to account for same. Reliance is laid on the decision in Re Estate of Eliud Njoroge Kuria [2015] eKLR

16. The Applicants submits that they have laid sufficient basis for the setting aside of the consent order as was set out in the case of Flora Wasike vs. Destimo Wamboko [1988] 1 KAR 625 and ask that the orders appointing Tom Odhiambo Marao of Blue Spring Estate Management be set aside.

17. It is submitted that at the moment only the Respondent is benefitting from the rental income. It is for this reason it is argued the Court should retire the existing estate agent and appoint an alternative.

18. Having considered the pleadings, submissions filed herein and the relevant law, I discern the following as the issues for determination

a) Whether the Court should enlarge and/ or extend time in respect to the orders issued by Justice Muchelule on 29th June 2022

b) Whether the Court should stay and or set aside the valuation exercise pending the hearing and determination of Appeal No. E781 of 2022.

c) Whether the Court should order payment of the valuation fee

d) Whether the Estate Agent should render an account of rental income collected

e) Whether the Court should retire the Estate Agent and appoint an alternative.

19. On the 1st Issue, Whether the Court should enlarge and/ or extend time in respect to the orders issued by Justice Muchelule on 29th June 2022

20. It is not contested that the Orders lapsed on 27th October 2022. The Orders of the Court were clear, that the Respondent was to move with haste to prosecute the Appeal or seek stay before the Court of Appeal. Neither happened. The Court has immense powers but these do not extend to resurrecting lapsed orders. I am fortified in this view by the decision of Nyamu J (as he then was) in Giant Holdings Limited vs Kenya Airports Authority [2004] eKLR. This limb of the Application therefore fails.

21. On the 2nd Issue, Whether the Court should stay and or set aside the valuation exercise pending the hearing and determination of Appeal No. E781 of 2022? The Applicant seeks to stay the valuation that has already happened and what is pending is payment of the consultancy fee for release of the report.

22. The Applicant alleges that this process is being unilaterally undertaken by the Respondents. The Record indicates that on 1st February 2023, the following were present in Court,

a) Mr. Munge for the 1st Administrator

b) Mr. Gikonyo for Beneficiary

c) Mr. Angaya for Beneficiary and

d) Mr. Nyaberi for Beneficiary

23. Mr. Munge addressed the Court and indicated that vide ruling of the Court parties were directed to have the property valued. They have however not been able to agree on a valuer and therefore were seeking the directions of the Court. The Court then directed that the Chief Government Valuer to conduct the valuation.

24. The Valuer was appointed by Order of the Court. The question that begs now is whether the Applicant’s proposal is in the interest of the Estate. It would appear that the Applicant considers the Orders of the Court to be suggestions. When the Court directed that the Chief Government valuer undertakes the Valuation, it was not offering an option for consideration, it was directing the parties on how to proceed.

25.  The Applicant does not challenge the validity of the orders of 1st February 2023 for this reason I decline the request to stay the valuation and the process of valuation.

26.  On the 3rd issue, Whether the Court should order payment of the valuation fee?

Stemming from my holding on the 2nd issue, I will answer this in the affirmative. Services have been rendered, they must be paid for. The total amount of Kshs 168000 will be paid out of the Estate Account.

27.  On the 4th Issue, Whether the Estate Agent should render an account of rental income collected?

The Applicant has made grave allegations against the Estate Agent, he was not invited to Court to respond to these allegations. The Applicant relies on the bank statements obtained and contends that the rental income being collected is way below what that is expected.

28. The mandate of the Court is primarily to distribute the free estate of the Deceased person. The Court must be careful not to be drawn into extraneous matters occasioned by acrimony between parties as it is in the instant case. The Court will only lean in to prevent wastage of the Estate where it is persuaded that it is in the interests of justice.

29. Section 83 relates to the duties of Personal Administrators, it is to them that the responsibility to provide accounts relates. Under Section 83 it is they who can be compelled to produce accounts. The mandate of the Probate Court is limited in scope, I am not persuaded that it is within the mandate of this Court to determine the dispute between the Administrators and the Estate Agent and therefore respectfully differ with the decision of Nyakundi J in Re Estate of Eliud Njoroge Kuria ( Supra)

30. The proper arena for the settlement of this dispute would be a civil suit and not within the probate cause.

31. On the 5th issue, whether the Court should retire the Estate Agent and appoint an alternative. Once again, I am guided by the strict confines of the mandate of the Probate Court. The Applicant avers that the Estate Agent appointed vide a consent recorded in Court has gone rogue and therefore the Consent order should be reviewed so as to safeguard the Estate.

32. It is evident that some of the Co Administrators do not think that their interests are not being taken care of by the current Estate Agent. The Respondent has not defended the performance of the Estate Agent or controverted the allegations of the Applicants

33. I therefore will grant the order to vacate the Consent order of the Court to allow for appointment of a new Estate Agent.

34. The decision on who manages the Estate must rest with the administrators. Once the Court has decided on who the Administrators are, they should be allowed to undertake their statutorily donated mandate unless they conduct themselves in a manner that requires revocation of the grant.

35. I am cognizant of the broad powers donated by Rule 73 of the Probate and Administration rules, they do not however allow me to colour outside the margins of the jurisdiction conferred by statute.

36. This Court definitely does not have the tools that would enable it to select any of the proposed Agents. This is a recipe of getting the Court caught up in the labyrinth of an estate and its administration.

37. The best that the Court can do is set timelines that push the parties forward, especially when they are reluctant to do so, and when pushed to the wire revoke the grant of the uncooperative administrator.

38. Not sufficient material was placed before me with regard to the alleged conduct unbecoming by Counsel and so I will say nothing on that point.

39. Accordingly, I make the following orders-

a) The Application dated 29th May 2023 is dismissed in its entirety with costs to the 1st Respondent assessed at Kshs 30,000 payable within 30 days

b) The Application dated 22nd May 2023 is allowed on the following terms

a) All Administrators to sign necessary documentation within 14 days  to enable the Branch Manager, Garden Plaza Branch, KCB Bank Kenya  issue a Banker’s Cheque payable to State Department for Lands & Physical Planning for the sum of Kshs. 168000 from the Estate Account No. 1179310772

b)  In default of any of the signatories to the Account signing the said documentation the Deputy Registrar to sign the same within 7 days of such default

c) The Chief Government Valuer to release the report within 48 hours of payment of the said fees.

d) The parties to agree on Estate Agent to manage the Estate in place of Tom Odhiambo Marao within 7 days of this order. If all the 4 Administrators are unable to agree, any 3 Administrators may nominate the alternative to Tom Odhiambo Marao of Blue Spring Estate Management within 21 days.

e)  The Administrators to file Summons for Confirmation of Grant within 30 days of presentation of Valuers report. Any party who does not concede to the mode of Distribution to file Affidavit of Protest within 21 days of service of the Summons for Confirmation.

f) Mention before the Deputy Registrar, Family Division on 23rd April 2024 to confirm compliance and take directions on hearing of the Summons for Confirmation.

g) Each party to bear their own costs

It is so ordered