Introduction
1. The grant in respect of the deceased's estate was issued on 14th May 2010 to John Mbugua after protracted and contentious litigation involving the estate's beneficiaries.
2. On 30th July 2010 a consent to the mode of distribution was filed. The consent set out how the estate would be distributed to the beneficiaries. A certificate of Confirmation of Grant was issued on the same day.
3. Following further litigation, consent letters dated 15th and 16th May 2014 were filed. These consent letters have given rise to the matter now before the Court.
The Notice of Motion dated 3rd March 2021
4. The application before me is a notice of motion dated 3rd March 2021 vide which the applicant, Mereka & Co. Advocates, seek the following orders:-
a. That the honourable court to order release of the amount of Kes.2,000,000.00 held in Judiciary Account No 1116927721 to be shared equally among the beneficiaries as hereunder
i. Thomas Ngugi Mbugua;
ii. Susan Wanjiku Mbugua Ngugi;
iii. Vivienne Linda Mbugua Ngugi;
iv. Emmanuel Sawe
v. Athman Peter Ngugi;
vi. Irene Wambui Wanjiku; and
vii. Melinda Lemmy Kiwana.
b. That in the alternative, the amount of Kes.2,000,000.00 be released to Susan Wanjiku Mbugua Ngugi and Vivienne Linda Mbugua Ngugi for reasons that they did not receive their share of the estate funds; and
c. That costs be provided for.
5. The grounds upon which the application is based are stated in the body of the motion and also in the supporting affidavit of Mr David Mukii Mereka, sworn on 3rd March 2023 and a further affidavit sworn by the said counsel on 23rd May 2024. The applicant avers that his firm deposited Kes.7,100,000.00 in the Judiciary account No 1116927721, Cooperative Bank, Mombasa branch. Pursuant to the consent recorded in Court on 16th May 2014, Kes.5,100,000.00 was released to Gathaara JN & Associates Advocates and Gikandi & Co. Advocates for the benefit of their respective clients. The balance, Kes.2,000,000.00, was left in the aforesaid account pending further orders. Counsel stated that the distribution of the estate had been finalized and that all that remained was the release of the said balance to the beneficiaries. Counsel urged that in lieu of distribution as per paragraph (a) of his prayer, the sum of Kes.2,000,000.00 be released to two beneficiaries, Susan Wanjiku Mbugua Ngugi and Vivienne Linda Mbugua Ngugi, who he stated did not receive a share of Kes.15,909,974.00 that was due to them.
6. The applicant attached a copy of the Court order and an email from Vivienne Linda Mbugua Ngugi dated 5th December 2022, written to associatesgathaara@gmail.com and gikandiadvocate@yahoo.com and copied to the applicant and Ms Susan Ngugi at kipessh@yahoo.com, in which it was denied that Susan and Vivienne received their share of Kes.23,998,525.00 sent by the applicant to the two firms of advocates on 20th June 2012.
7. The applicant, in the further affidavit sworn on 23rd May 2024, averred that the replying affidavit sworn by Mr Gikundi Ngibuini was fatally defective and incompetent and should be struck out as is offended Order 19 (3) of the Civil Procedure Rules and Rule 8 of the Advocates Practice Rules, in so far as Mr Ngibuini failed to mention in his affidavit that he is duly authorized and competent to swear the affidavit on behalf of his putative clients. It was consequently denied that the two firms of advocates had instructions to represent their alleged clients. The applicant reiterated in the further affidavit that Susan and Vivienne hadn’t been paid and that it was, therefore, fair and just that the remainder amount be paid to them to bring the succession cause to a close.
8. Counsel denied that Gathaara JN & Associates Advocates and Gikandi & Co Advocates had instructions to act for the parties. Thus, I was urged to exercise my jurisdiction pursuant to Article 159 of the Constitution of Kenya and Rule 73 of the Probate and Administration Rules.
Response by the Counsel for the 5th, 6th and 7th Beneficiaries
9. In his replying affidavit Mr Gikandi Ngibuini, learned counsel for the 5th, 6th and 7th beneficiaries, stated that the Court determined the respective beneficial interest of all the beneficiaries and that division of funds had hitherto been down in the ratio of 60:40 between House A (Thomas Ngugi Mbugua, Susan Wanjiku Mbugua Ngugi, Vivienne Linda Mbugua Ngugi and Emmanuel Sawe) and House B (Athman Peter Ngugi, Irene Wambui Wanjiku and Melinda Lemmy Kiwana) Counsel urged that the funds being held in Court be released to the Gathaara JN & Associates Advocates and Gikandi & Co Advocates who shall then share out the money to the beneficiaries per the agreed ratio.
10. Mr Gikandi opposed the release of the funds held in the Judiciary account in the manner Mr Mereka proposed because it was not backed by the distribution formula that the Court had approved.
Hearing of the Notice of Motion dated 3rd March 2023
11. On 7th May 2024, the Court directed that the parties file Written Submissions. This order was complied with by the parties’ advocates. The applicant's counsel filed written submissions dated 28th May 2024. Counsel for the 5th, 6th and 7th Beneficiaries filed Written Submissions dated 3rd June 2024.
Written Submissions of the Applicant
12. In his written submissions, the applicant urged that both Susan and Vivienne hadn’t received their share of Kes.15,909,974.00. Counsel relied on Vivienne's email sent on December 5, 2022, in support of this. It was submitted that the beneficiaries' counsels did not explain the lack of payment.
13. Counsel averred that Mr Gikandi Ngibuini’s replying affidavit was fatally defective as it lacked the words showing that he had the authority to act for his alleged client. Therefore, he questioned Mr. Ngibuini’s competence to represent his putative/alleged clients.
14. Mr. Mereka submitted that Mr. Ngibuini had deposed to a defective affidavit by making statements on oath on contentious matters. Reliance was placed on the cases Magnolia PVT Ltd vs Synermed Pharmaceuticals (K) Ltd (2018)eKLR and Regina Waithira Mwani GGitau versus Boniface Nthange [2015]eKLR and also on the provisions of sections 1A, 1B, 3 and 3A of the Civil Procedure Act and Article 159 of the Constitution of Kenya.
15. It was urged that since Vivienne and Susan didn’t receive their rightful shares of the estate, payment should be made to them directly instead of to the firms of Gathaara JN & Associates Advocates and Gikandi & Co Advocates.
Submissions of the 5th, 6th and 7th Beneficiaries
16. Mr Gikandi Ngibuini, learned counsel for the 5th, 6th and 7th beneficiaries, urged that the applicant, Mereka Co Advocates, previously acted for the deceased's estate as the only advocates on record. When significant discrepancies were found regarding the management of the estate, the 1st, 2nd and 3rd beneficiaries appointed the firm of Gathaara JN & Associates Advocates. The 5th, 6th and 7th beneficiaries, on the other hand, appointed Gikandi & Associates Advocates. Counsel urged that Mr Mereka no longer had instructions to act for any of the parties and that his only duty was to account for funds and assets of the estate and make them available for distribution among the beneficiaries. It was further urged that the applicant was motivated by ulterior motives.
17. Mr Ngibuini submitted that the sharing ratio between the two houses was 60:40 as per previous practice. In his view, this could be ascertained from a perusal of the consent letter dated 16th May 2014, filed in Court on 27th May 2014.
18. It was urged that the said ratio be maintained unless there was an agreement between the parties to the contrary. Counsel stated that none of the beneficiaries had objected to their representation of their various clients. Consequently, he averred that “…prolonged silence and lack of objection from the beneficiaries should be construed as implicit consent and affirmation of the advocate's authority to act on their behalf.”
19. Mr Gikandi thus urged that the sum of Kes.2,000,000.00 be released to the joint account of Gathaara JN & Associates Advocates and Gikandi & Co Advocates so that they could then release the funds to their respective clients.
Analysis
20. I have perused the application, the supporting and further affidavits, both sworn by Mr David Mukii Mereka and the replying affidavit sworn by Mr Gikandi Ngibuini, and also considered the parties' respective submissions. In my view, three issues are evident:-
1. Whether the beneficiaries’ counsels have instruction to act for their alleged clients;
2. Whether the affidavit of Mr Ngibuini is fatally defective; and
3. How the money held in the Judiciary account should be shared.
Who represents the Beneficiaries?
21. I have perused the Court file. The Court record shows that Gathaara JN Associates Advocates and Gikandi & Co Advocates have been on record for the beneficiaries. The consent letter dated 15th May 2014, filed on 27th May 2014, was on the applicant’s notepaper and was executed by him, Gathaara JN & Associates and Gikandi & Co Advocates. I have not seen any evidence showing that instructions were withdrawn from them. Since the applicant wished the Court to believe that counsels for the beneficiaries no longer had instructions, it was his duty to prove it.
22. The foregoing is evident, given the provisions of the law of evidence. Section 109 of the Evidence Act states that:-
“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”
23. Without documentary evidence the court cannot agree with the applicant. I agree with the holding of the court in Timsales Limited versus Harun Thuo Ndungu [2010]eKLR on the need for documentary evidence whenever facts are in dispute.
24. The instant application was served on the beneficiaries. None of them have come forward to deny that they are represented by the 2 firms of advocates. In the circumstances, I find and hold that Mr. Mereka's objection to two firms representing the beneficiaries has no merit and is for dismissal.
Did the affidavit of Mr. Gikandi Ngibuini advocate offend Order 19(3) of the Civil Procedure Rules and Rule 8 of the Advocates Practice Rule?
25. Mr Mereka urged that Mr Gikandi failed to disclose that he was duly authorized and competent to swear the affidavit on behalf of his clients. He urged that the requirement for such phraseology to be used wasn’t mere rhubarb and that it served the greater interests of justice.
26. It would have been good if Mr Gikandi Ngibuini had adhered to the applicable drafting practice and used the words whose absence Mr Mereka has taken umbrage at. That notwithstanding, I am unable to see any injustice that the applicant suffered for lack of strict adherence to the practice. As I have indicated, I am persuaded that the beneficiaries have advocates who act for them, particularly Mr Gikandi Ngibuini, who acts for the 5th, 6th, and 7th beneficiaries.
27. Further, I note that the application, the affidavits in support and the response thereto are based on affidavits sworn by counsels. The Supporting and further affidavits appear to raise contentious issues regarding payment or lack thereof of the beneficiaries or part of them. Were I to insist on strict adherence with Order 19(3) of the Civil Procedure Rules and Rule 8 of the Advocates Practice Rules it is doubtful if the applicant’s affidavit, to the extent it alleges that some beneficiaries haven’t been paid, would pass muster. Payment, or lack thereof, is a contentious issue that shouldn’t be part of an affidavit of counsel.
How should the funds in the Judiciary account be shared?
28. The two consents filed in Court on 27th May 2014 did not state the purposes the Kes.2,000,000.00 in the judiciary account was to serve. Since all the parties agree that the matter should be determined by this court, I will exercise the discretion granted by the Law of Succession Act and the Probate & Administration Rules.
29. Section 47 of the Law of Succession 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 … ”
30. Rule 73 of the Probate & 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.”
31. As I am called upon to exercise discretion, I must do so judiciously, on sound principles, not capriciously or whimsically. Whatever decision I make must be in the greater interest of justice. What, then, should I do in this case?
32. In his affidavit, Mr. Mereka deposed on oath that Susan and Vivienne had not received their share of the money deposited in court. In my view, this grave allegation ought to have been made by the two persons themselves through an affidavit. No document, save for the alleged email, was provided to back up the claim. If it is true that Gathaara JN & Associates Advocates and Gikandi & Co Advocates misappropriated their clients’ money, then the recourse available to the clients is a complaint to the Disciplinary Tribunal and or a civil suit for the restitution of the money unlawfully embezzled. I would also have expected them to terminate the services of the said counsels. No such thing appears to have been done. The upshot of this is that I find and hold that Mr. Mereka’s claim has no basis.
33. In my view, changing the distribution formula requires the acquiescence of all the beneficiaries. In this case, some beneficiaries are clearly opposed to the proposed formula.
34. How should the funds be distributed? I have perused the consent letter dated 16th May 2014. There is no need to reinvent the wheel. In the circumstances, I order that the funds held in Judiciary Account No 1116927721, at the Cooperative Bank of Kenya, amounting to Kes.2,000,000.00 be paid to the firms of Gathaara & Associates Advocates and Gikandi & Co Advocates, in the ratio of 5:3, on behalf of their clients, as was previously done, so that they can then pay their respective clients.
35. I make no order as to costs.
36. It is so ordered.
Dated and signed at Mombasa this 19th day of August 2024. Delivered virtually through Microsoft TEAMS
1. The grant in respect of the deceased's estate was issued on 14th May 2010 to John Mbugua after protracted and contentious litigation involving the estate's beneficiaries.
2. On 30th July 2010 a consent to the mode of distribution was filed. The consent set out how the estate would be distributed to the beneficiaries. A certificate of Confirmation of Grant was issued on the same day.
3. Following further litigation, consent letters dated 15th and 16th May 2014 were filed. These consent letters have given rise to the matter now before the Court.
The Notice of Motion dated 3rd March 2021
4. The application before me is a notice of motion dated 3rd March 2021 vide which the applicant, Mereka & Co. Advocates, seek the following orders:-
a. That the honourable court to order release of the amount of Kes.2,000,000.00 held in Judiciary Account No 1116927721 to be shared equally among the beneficiaries as hereunder
i. Thomas Ngugi Mbugua;
ii. Susan Wanjiku Mbugua Ngugi;
iii. Vivienne Linda Mbugua Ngugi;
iv. Emmanuel Sawe
v. Athman Peter Ngugi;
vi. Irene Wambui Wanjiku; and
vii. Melinda Lemmy Kiwana.
b. That in the alternative, the amount of Kes.2,000,000.00 be released to Susan Wanjiku Mbugua Ngugi and Vivienne Linda Mbugua Ngugi for reasons that they did not receive their share of the estate funds; and
c. That costs be provided for.
5. The grounds upon which the application is based are stated in the body of the motion and also in the supporting affidavit of Mr David Mukii Mereka, sworn on 3rd March 2023 and a further affidavit sworn by the said counsel on 23rd May 2024. The applicant avers that his firm deposited Kes.7,100,000.00 in the Judiciary account No 1116927721, Cooperative Bank, Mombasa branch. Pursuant to the consent recorded in Court on 16th May 2014, Kes.5,100,000.00 was released to Gathaara JN & Associates Advocates and Gikandi & Co. Advocates for the benefit of their respective clients. The balance, Kes.2,000,000.00, was left in the aforesaid account pending further orders. Counsel stated that the distribution of the estate had been finalized and that all that remained was the release of the said balance to the beneficiaries. Counsel urged that in lieu of distribution as per paragraph (a) of his prayer, the sum of Kes.2,000,000.00 be released to two beneficiaries, Susan Wanjiku Mbugua Ngugi and Vivienne Linda Mbugua Ngugi, who he stated did not receive a share of Kes.15,909,974.00 that was due to them.
6. The applicant attached a copy of the Court order and an email from Vivienne Linda Mbugua Ngugi dated 5th December 2022, written to associatesgathaara@gmail.com and gikandiadvocate@yahoo.com and copied to the applicant and Ms Susan Ngugi at kipessh@yahoo.com, in which it was denied that Susan and Vivienne received their share of Kes.23,998,525.00 sent by the applicant to the two firms of advocates on 20th June 2012.
7. The applicant, in the further affidavit sworn on 23rd May 2024, averred that the replying affidavit sworn by Mr Gikundi Ngibuini was fatally defective and incompetent and should be struck out as is offended Order 19 (3) of the Civil Procedure Rules and Rule 8 of the Advocates Practice Rules, in so far as Mr Ngibuini failed to mention in his affidavit that he is duly authorized and competent to swear the affidavit on behalf of his putative clients. It was consequently denied that the two firms of advocates had instructions to represent their alleged clients. The applicant reiterated in the further affidavit that Susan and Vivienne hadn’t been paid and that it was, therefore, fair and just that the remainder amount be paid to them to bring the succession cause to a close.
8. Counsel denied that Gathaara JN & Associates Advocates and Gikandi & Co Advocates had instructions to act for the parties. Thus, I was urged to exercise my jurisdiction pursuant to Article 159 of the Constitution of Kenya and Rule 73 of the Probate and Administration Rules.
Response by the Counsel for the 5th, 6th and 7th Beneficiaries
9. In his replying affidavit Mr Gikandi Ngibuini, learned counsel for the 5th, 6th and 7th beneficiaries, stated that the Court determined the respective beneficial interest of all the beneficiaries and that division of funds had hitherto been down in the ratio of 60:40 between House A (Thomas Ngugi Mbugua, Susan Wanjiku Mbugua Ngugi, Vivienne Linda Mbugua Ngugi and Emmanuel Sawe) and House B (Athman Peter Ngugi, Irene Wambui Wanjiku and Melinda Lemmy Kiwana) Counsel urged that the funds being held in Court be released to the Gathaara JN & Associates Advocates and Gikandi & Co Advocates who shall then share out the money to the beneficiaries per the agreed ratio.
10. Mr Gikandi opposed the release of the funds held in the Judiciary account in the manner Mr Mereka proposed because it was not backed by the distribution formula that the Court had approved.
Hearing of the Notice of Motion dated 3rd March 2023
11. On 7th May 2024, the Court directed that the parties file Written Submissions. This order was complied with by the parties’ advocates. The applicant's counsel filed written submissions dated 28th May 2024. Counsel for the 5th, 6th and 7th Beneficiaries filed Written Submissions dated 3rd June 2024.
Written Submissions of the Applicant
12. In his written submissions, the applicant urged that both Susan and Vivienne hadn’t received their share of Kes.15,909,974.00. Counsel relied on Vivienne's email sent on December 5, 2022, in support of this. It was submitted that the beneficiaries' counsels did not explain the lack of payment.
13. Counsel averred that Mr Gikandi Ngibuini’s replying affidavit was fatally defective as it lacked the words showing that he had the authority to act for his alleged client. Therefore, he questioned Mr. Ngibuini’s competence to represent his putative/alleged clients.
14. Mr. Mereka submitted that Mr. Ngibuini had deposed to a defective affidavit by making statements on oath on contentious matters. Reliance was placed on the cases Magnolia PVT Ltd vs Synermed Pharmaceuticals (K) Ltd (2018)eKLR and Regina Waithira Mwani GGitau versus Boniface Nthange [2015]eKLR and also on the provisions of sections 1A, 1B, 3 and 3A of the Civil Procedure Act and Article 159 of the Constitution of Kenya.
15. It was urged that since Vivienne and Susan didn’t receive their rightful shares of the estate, payment should be made to them directly instead of to the firms of Gathaara JN & Associates Advocates and Gikandi & Co Advocates.
Submissions of the 5th, 6th and 7th Beneficiaries
16. Mr Gikandi Ngibuini, learned counsel for the 5th, 6th and 7th beneficiaries, urged that the applicant, Mereka Co Advocates, previously acted for the deceased's estate as the only advocates on record. When significant discrepancies were found regarding the management of the estate, the 1st, 2nd and 3rd beneficiaries appointed the firm of Gathaara JN & Associates Advocates. The 5th, 6th and 7th beneficiaries, on the other hand, appointed Gikandi & Associates Advocates. Counsel urged that Mr Mereka no longer had instructions to act for any of the parties and that his only duty was to account for funds and assets of the estate and make them available for distribution among the beneficiaries. It was further urged that the applicant was motivated by ulterior motives.
17. Mr Ngibuini submitted that the sharing ratio between the two houses was 60:40 as per previous practice. In his view, this could be ascertained from a perusal of the consent letter dated 16th May 2014, filed in Court on 27th May 2014.
18. It was urged that the said ratio be maintained unless there was an agreement between the parties to the contrary. Counsel stated that none of the beneficiaries had objected to their representation of their various clients. Consequently, he averred that “…prolonged silence and lack of objection from the beneficiaries should be construed as implicit consent and affirmation of the advocate's authority to act on their behalf.”
19. Mr Gikandi thus urged that the sum of Kes.2,000,000.00 be released to the joint account of Gathaara JN & Associates Advocates and Gikandi & Co Advocates so that they could then release the funds to their respective clients.
Analysis
20. I have perused the application, the supporting and further affidavits, both sworn by Mr David Mukii Mereka and the replying affidavit sworn by Mr Gikandi Ngibuini, and also considered the parties' respective submissions. In my view, three issues are evident:-
1. Whether the beneficiaries’ counsels have instruction to act for their alleged clients;
2. Whether the affidavit of Mr Ngibuini is fatally defective; and
3. How the money held in the Judiciary account should be shared.
Who represents the Beneficiaries?
21. I have perused the Court file. The Court record shows that Gathaara JN Associates Advocates and Gikandi & Co Advocates have been on record for the beneficiaries. The consent letter dated 15th May 2014, filed on 27th May 2014, was on the applicant’s notepaper and was executed by him, Gathaara JN & Associates and Gikandi & Co Advocates. I have not seen any evidence showing that instructions were withdrawn from them. Since the applicant wished the Court to believe that counsels for the beneficiaries no longer had instructions, it was his duty to prove it.
22. The foregoing is evident, given the provisions of the law of evidence. Section 109 of the Evidence Act states that:-
“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”
23. Without documentary evidence the court cannot agree with the applicant. I agree with the holding of the court in Timsales Limited versus Harun Thuo Ndungu [2010]eKLR on the need for documentary evidence whenever facts are in dispute.
24. The instant application was served on the beneficiaries. None of them have come forward to deny that they are represented by the 2 firms of advocates. In the circumstances, I find and hold that Mr. Mereka's objection to two firms representing the beneficiaries has no merit and is for dismissal.
Did the affidavit of Mr. Gikandi Ngibuini advocate offend Order 19(3) of the Civil Procedure Rules and Rule 8 of the Advocates Practice Rule?
25. Mr Mereka urged that Mr Gikandi failed to disclose that he was duly authorized and competent to swear the affidavit on behalf of his clients. He urged that the requirement for such phraseology to be used wasn’t mere rhubarb and that it served the greater interests of justice.
26. It would have been good if Mr Gikandi Ngibuini had adhered to the applicable drafting practice and used the words whose absence Mr Mereka has taken umbrage at. That notwithstanding, I am unable to see any injustice that the applicant suffered for lack of strict adherence to the practice. As I have indicated, I am persuaded that the beneficiaries have advocates who act for them, particularly Mr Gikandi Ngibuini, who acts for the 5th, 6th, and 7th beneficiaries.
27. Further, I note that the application, the affidavits in support and the response thereto are based on affidavits sworn by counsels. The Supporting and further affidavits appear to raise contentious issues regarding payment or lack thereof of the beneficiaries or part of them. Were I to insist on strict adherence with Order 19(3) of the Civil Procedure Rules and Rule 8 of the Advocates Practice Rules it is doubtful if the applicant’s affidavit, to the extent it alleges that some beneficiaries haven’t been paid, would pass muster. Payment, or lack thereof, is a contentious issue that shouldn’t be part of an affidavit of counsel.
How should the funds in the Judiciary account be shared?
28. The two consents filed in Court on 27th May 2014 did not state the purposes the Kes.2,000,000.00 in the judiciary account was to serve. Since all the parties agree that the matter should be determined by this court, I will exercise the discretion granted by the Law of Succession Act and the Probate & Administration Rules.
29. Section 47 of the Law of Succession 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 … ”
30. Rule 73 of the Probate & 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.”
31. As I am called upon to exercise discretion, I must do so judiciously, on sound principles, not capriciously or whimsically. Whatever decision I make must be in the greater interest of justice. What, then, should I do in this case?
32. In his affidavit, Mr. Mereka deposed on oath that Susan and Vivienne had not received their share of the money deposited in court. In my view, this grave allegation ought to have been made by the two persons themselves through an affidavit. No document, save for the alleged email, was provided to back up the claim. If it is true that Gathaara JN & Associates Advocates and Gikandi & Co Advocates misappropriated their clients’ money, then the recourse available to the clients is a complaint to the Disciplinary Tribunal and or a civil suit for the restitution of the money unlawfully embezzled. I would also have expected them to terminate the services of the said counsels. No such thing appears to have been done. The upshot of this is that I find and hold that Mr. Mereka’s claim has no basis.
33. In my view, changing the distribution formula requires the acquiescence of all the beneficiaries. In this case, some beneficiaries are clearly opposed to the proposed formula.
34. How should the funds be distributed? I have perused the consent letter dated 16th May 2014. There is no need to reinvent the wheel. In the circumstances, I order that the funds held in Judiciary Account No 1116927721, at the Cooperative Bank of Kenya, amounting to Kes.2,000,000.00 be paid to the firms of Gathaara & Associates Advocates and Gikandi & Co Advocates, in the ratio of 5:3, on behalf of their clients, as was previously done, so that they can then pay their respective clients.
35. I make no order as to costs.
36. It is so ordered.
Dated and signed at Mombasa this 19th day of August 2024. Delivered virtually through Microsoft TEAMS