IN THE MATTER OF ESTATE OF JAMES CHEGE NDWARU

1. The Application for determination is Summons dated 16th February 2023 and is presented Under Section 45 of the Law of Succession Act and Rule 49 of the Probate and Administration Rules and seeks the following orders-

1) Spent

2) THAT the Respondents in particular the 1st, 4th and 5th Respondents be restrained from any further intermeddling of Title No. Dagoretti / Riruta/ 9 an asset of the Estate until formal subdivision and allocation in compliance with the certificate of Confirmation is done.

3)  THAT the 1st, 2nd and 3rd Respondents be ordered to execute forms LR 39 & 42, Mutation Forms, Application for Land Control Board Consent, Transfer of Interest on Land or any other documents necessary to effect final distribution of Title No. Dagoretti/ Riruta/9 to the beneficiaries.

4) THAT in default / refusal by the 1st, 2nd and 3rd Respondent to execute the documents mentioned in prayer 3 above, the Court to authorize the Deputy Registrar to execute the said documents.

5) THAT the Court do restrain the Interested Party from misleading the beneficiaries by insisting on the use of a sketch plan he prepared in 2016 and which does not comply with the certificate of Confirmation

6) THAT the OCS Kabete Police Station to supervise the enforcement of the orders herein

7) Costs be in the Cause

2. The Application is supported by the Affidavit of JANE WANJIRU CHEGE sworn on even date.

3. The Application is opposed by Respondents and an affidavit sworn in Opposition by the 1st Respondent, MARY WACHUKA CHEGE sworn on 2nd June 2023.

4. The Court directed that the Application be canvassed by written submissions, the parties Complied the Applicants Submissions are dated 28th August 2023. Those of the Respondent are dated 28th August 2023.

SUMMARY OF THE APPLICANT’S CASE

5. The Applicant avers that the Grant herein was confirmed on 7th November 2017 and rectified on 1st October 2018. She states that the assets of the Estate were to be divided equally among all the beneficiaries.

6. The present application has been triggered by the alleged failure by the Co- Administrators to comply with the Certificate of Confirmation of Grant in the transmission of the properties and particularly in relation to Title No. Dagoretti/ Riruta/ 9.

7. She contends that the proposal as presented by her co administrators is tantamount to amending the Court Order and has not been done in consultation with the other applicants. It is submitted that these actions of the Administrators amount to intermeddling.

SUMMARY OF RESPONDENT’S CASE

8. The Respondents aver that vide Judgment dated 7th November 2017 Muchelule J. (as he then was) directed that all assets be distributed equally amongst all the beneficiaries.

9. It is contended that the Administrators are transmitting the estate in accordance with the Certificate of Confirmation of Grant and consensus among the beneficiaries.

10. It is submitted that the Application is an abuse of the Court process and is another attempt by the Applicant to influence the distribution of the estate to her advantage at the expense of the other beneficiaries.

11. It is submitted a previous attempt was declined by the Court in its ruling dated 1st October 2018. It is countered that it is the Applicant who has obstructed the finalization of the transmission of the estate to the entitled beneficiaries.

12. The Respondent identifies the following as the issues for determination

1) Whether the Respondents are intermeddling with the Estate of the deceased?

2) Whether the Applicant’s Application is in compliance with the judgment dated 7th November 2017 and the certificate of Confirmation of Grant also dated 7th November 2017?

13. On the 1st  issue, the Respondent relies on Sections 45, 79,80(2), 82, (c) and 83(f) and the decisions of WM Musoka J in the Matter of Estate of Veronica Njoki Wakagoto ( Deceased) [2013] eKLR , Re Estate of Jamin Inyanda Kadambi ( Deceased) [ 2021] eKLR and in Re Estate of Barasa Kananje Manya ( Deceased) [2020] eKLR in which the Court reiterated that the Grant of Representation vested the property in the Administrator. It is submitted that for that reason an administrator cannot intermeddle with an Estate when he/ she is executing his/ her responsibilities.

14. On the 2nd Issue, it is submitted that the Administrators proposal will ensure equal distribution of the estate among the beneficiaries and therefore is in accordance with the Certificate of Confirmation.

ANALYSIS AND DETERMINATION

15. Having regard to the pleadings filed herein, the rival submissions and the relevant law, the issue for determination is whether

1) The Applicant has met the legal threshold for the grant of the prayers sought in the Application dated 16th February 2023

16. As I perceive it the dispute resolves around whether the proposal by the Respondents for the Distribution of Title No. Dagoretti/ Riruta/ 9 is in compliance with the Certificate of Confirmation of Grant issued on 7th November 2017 and rectified on 1st October 2018.

17. It would appear that other assets of the Estate have been distributed among the beneficiaries and that there is no dispute. It seems to me therefore that in instructing the Surveyor the Respondents have acted within their mandate as Administrators. In the circumstances, I find that the Respondents are not guilty of intermeddling. The identified beneficiaries however, have to await until the property vests in them before they take possession.

18. The issue for consideration though is whether the Probate Court can at this juncture issue the orders sought by the Applicant. As observed earlier it is not disputed that the Grant was confirmed on 7th November 2017.

19. The jurisdiction of the probate Court is well settled by law and judicial precedent.  In the decision in Re Estate of Alice Mumbua Mutua (Deceased) [2017] KLR (Musyoka J) said as follows on the same:

29. …. The primary mandate of the probate court is distribution of the estate and once an order is made distributing the estate, the court’s work would be complete. The proposition therefore is that not every dispute over property of a dead person ought to be pushed to the probate court. The interventions by that court are limited to what I have stated above.”

20. In re Estate of Daniel Khasievera Anusu (Deceased) [2022] eKLR where the facts were almost similar to the current case Musyoka J observed as follows

[7]The dispute that arose thereafter is not on the orders made by the court on distribution, on 25th May 2017, but rather on how to implement them on the ground. There are fights over execution of documents to facilitate partition of the land equally. The Deputy Registrar was directed to sign certain papers on behalf of the administrators. There are also quarrels over survey works, and wrangling on how the distribution on the ground should shape up.

[8] 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.

[9] 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.

[18]……... Not every conceivable dispute should be rushed to court, let other mechanisms be exhausted first.

21. I agree with the reasoning of Hon. Musyoka J. For this reason, I will proceed to strike out the Application for being incompetent. The Applicant should move either the Land Registrar or the appropriate Court with the requisite jurisdiction.

22. Consequently, the preservative orders issued on 8th March 2023 are vacated

23. This being a matter involving family members, each party will bear their costs