Esther M. Kiloo & Peter N. Kiloo v Beth Ndinda Muasa,Elizabeth Mwende Muasa , Wendwa David Kiloo, Ruth Mutanu Kiloo & David Muasa Kiloo [2014] KEHC 778 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

SUCCESSION CAUSE NO. 9 OF 2001

IN THE MATTER OF THE ESTATE OF LUKAS KILOO KASAU (DECEASED)

ESTHER M. KILOO……………………………….1ST PETITIONER

PETER N. KILOO………………………………….2ND PETITIONER

VERSUS

BETH NDINDA MUASA……….……1ST PROTESTOR/OBJECTOR

ELIZABETH MWENDE MUASA …. 2ND PROTESTOR/OBJECTOR

WENDWA DAVID KILOO……………3RD PROTESTOR/OBJECTOR

AND

RUTH MUTANU KILOO……………………1ST INTERESTED PARTY

DAVID MUASA KILOO…………………….2ND INTERESTED PARTY

R U L I N G

The application dated 22nd November 2013 brought pursuant to the provisions of Section 76(e) of the Law of Succession Act, and Rule 44(1) and 73of theProbate and Administration Rules, the applicants: Beth Ndinda Muasa and Wendwa David Kiloo seek revocation of grant of letters of administration intestate of the estate of Lucas Kiloo Kasaumade to Esther M. Kiloo and Peter N. Kiloo and subsequence issuance of the same to the applicants jointly with Peter N. Kiloo the 2nd Respondent.

The application is supported by an affidavit deponed by the 2nd applicant who depones that letters of administration intestate of the deceased’s estate was made to Esther M. Kiloo (Esther Mukethe Kiloo) and Peter N. Kiloo; the said Esther Mukethe Kiloo who was the deceased’s widow died on the 18th November 2008 and the applicants herein are administrators of her estate; the grant issued has become useless and inoperative following the death of Esther Mukethe Kiloo; the 2nd Respondent /Petitioner herein has not taken any step to apply for a fresh grant and confirmation thereof and the 2nd Petitioner has failed in his duties as an administrator.

In a reply thereto the 2nd Petitioner/Respondent deponed that: the applicants had not satisfied the conditions of revoking a grant; the applicants failed to disclose that there was an application pending seeking to revoke letters of administration issued to the applicants; they failed to disclose that the deceased has a son known as David M. Kiloo and daughters Ruth Mutanu Kiloo and 8 others surviving her; the objectors are estranged wives of David M. Kilooand grandson to the deceased respectively who cannot purport to administer the estate of the deceased when the Respondent’s step brother and sisters are living and that he is capable of administering the estate without the assistance of the objectors  who are intruders.

Section 76(e) of the Law of Succession Actstipulates:

“A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion.

(e) that the grant has become useless and inoperative through subsequent circumstances.”

Esther Kiloo died on the 18th November 2008.  Her co-administrator, the Respondent herein Peter Kiloohas taken more than six (6) years without taking any step as an administrator of the estate of the deceased. He has failed to seek issuance of fresh letters of administration intestate and/or have the deceased substituted as an administrator of the estate. This was failure on his part as an administrator.

In their application the applicants failed to disclose the relationship between them and the deceased.

In the replying affidavit it is stated that the applicants failed to disclose that Esther Kiloo was survived by a son David Kiloo and eight daughters, Ruth Mutanu Kiloo being one of them.  Further, that, the applicants are estranged wives of David Kiloo and a grandson to the deceased.  Attached to the replying affidavit is an annexture “PNKI” and application for revocation of grant filed in Succession Cause No. 306 of 2011 in respect of the estate of Esther Kiloo where the applicants herein are administrators of the estate.

The application was filed by David Muasa Kiloo and Ruth Mutanu Kiloo seeking to have the grant revoked. They filed the application in their capacity as direct beneficiaries of the deceased.

These averments have not been challenged by the applicants herein.

Section 38of the Law of Succession Act provides:

“Where an intestate has left a surviving child or children but no spouse, the net intestate estate shall, subject to the provisions of Sections 41 and 42, devolve upon the surviving child, if there be only one, or be equally divided among the surviving children.”

Persons who would be given priority when it comes to administration of the deceased’s estate would be his children. In the premises David Kiloo and Ruth Mutanuwould be better placed to administer the estate of the deceased.

Having considered the affidavit evidence adduced and rival submission of both counsels, it is evident that the grant issued herein has become ineffective.  Consequently, I hereby revoke it.  A fresh grant shall issue in the names of persons to be identified by the family within 30 days. In default, the same shall issue in the name of Peter Kiloo as a sole administrator.

This being a Succession matter, each party shall bear their costs.

DATED, SIGNEDand DELIVERED at MACHAKOS this5THday of DECEMBER, 2014.

L.N. MUTENDE

JUDGE