In re Estate of Benjamin Bundi Mukiira (Deceased) [2022] KEHC 12207 (KLR)

In re Estate of Benjamin Bundi Mukiira (Deceased) (Succession Cause 862 of 2018) [2022] KEHC 12207 (KLR) (Family) (9 May 2022) (Ruling)

Neutral citation: [2022] KEHC 12207 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause 862 of 2018

AO Muchelule, J

May 9, 2022

IN THE MATTER OF THE ESTATE OF BENJAMIN BUNDI MUKIIRA (DECEASED)

Between

Julia Kagwira Bundi

1st Applicant

Christine Kuri Bundi

2nd Applicant

and

Zachary Kathunkumi Mukiira

1st Respondent

Lawrence Mungiiria Kirianki.

2nd Respondent

Ruling

1. The deceased Benjamin Bundi Mukiira died intestate on May 4, 2018 at Nairobi. He was survived by his widow Julia Kagwira Bundi (1st applicant) and the following children:-(a)Christine Kuri Bundi (2nd applicant);(b)Rose Lilian Gatwiri Bundi;(c)Pauline Kanana Bundi;(d)David Mwicwiri Bundi; and(e)Kevin Nkumbuku Bundi.

2. The deceased’s estate comprised the following properties:-(a)Nairobi/Block 72/2xxx Langata with rental houses;(b)Meru Block 11/3xx with rental houses;(c)IR 277721/xx(d)Vehicle KBE 2xxx Toyota pickup;(e)Cash at Mastermind Tobacco Ltd; and(f)Cash at KCB, cooperative bank and central bank of Kenya.The liabilities were indicated to be Kshs 2,xxxxxx/=

3. It is not in dispute that on January 9, 2019 a joint grant of letters of administration intestate was issued to the applicants. Section 79 of the Law of Succession Act (cap 160) provides that:-“The executor or administrator to whom representation has been granted shall be the personal representative of the deceased for all purposes of that grant, and, subject to any limitation imposed by the grant, all the property of the deceased shall vest in him as personal representative.”The powers and duties of the executors or administrators of an estate of the deceased are provided under sections 82 and 83 of the act.

4. When the applicants got the grant, all the property of the deceased became vested in them. Under section 45 of the act, any other person including the respondents Zachary Kathunkumi Mukiira and Lawrence Mungiiria Kirianki, touching and/or dealing in the property that constitutes the estate of the deceased, without the authority of the applicants or the court, is an intermeddler and commits a criminal offence.

5. The respondents are the brother and nephew, respectively, of the deceased. They admit they are the ones managing “some of the assets” including Nairobi/Block 72/xxxx in Langata. They state that the deceased had taken in the 2nd respondent and his brother and settled them on his Langata property, therefore that the said respondent and his brother were dependants of the deceased. The respondents are collecting rent from the tenants of the property and applying it to, among other things, the repair of the property and to settle the hospital bills the deceased left. Legally, the issue of whether or not the 2nd respondent and his brother were depended on the deceased can only be determined following an appropriate application under sections 26, 27, 28 and 29 of the Act. As things stand, the respondents are intermeddling with the property of the deceased.

6. The instant application dated September 3, 2019 by the applicants sought that the respondents be restrained from intermeddling with Nairobi/Block 72/xxxx Langata and be ordered to vacate from the premises. The respondents took issue with the competence of the application saying that the affidavit in support of the application had not been signed by the 1st applicant but by her caretaker Samwel Waweru Gaitho. The 1st applicant stated that Samwel Waweru Gaitho was her agent and caretaker of the property whom the respondents had forced out of the property. The technicalities of the affidavit aside, the respondents admit that they are managing this property, collecting rent from the tenants and using the same for whatever reason. What they are doing offends sections 45 and 79 of the act. Once the court becomes aware of these facts, it must act under sections 47 of the act and rule 73 of the Probate and Administration Rules to protect the estate of the deceased until such time that it has been distributed to the rightful beneficiaries.

7. Consequently, I order the respondents to immediately vacate the deceased’s estate, and in particular Nairobi/Block 7 2/xxxx in Langata, and to, within 60 days, account to the court and to applicants, through sworn affidavit, for the rent so far received from the tenants of the estate of the deceased. The applicants shall have costs of the application.

8. Any party aggrieved by these orders has 30 days to appeal to the Court of Appeal.

DATED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 9TH DAY OF MAY 2022. A.O. MUCHELULEJUDGE