In re Estate of Cecilia Wanjiru Kibiche (Deceased) [2019] KEHC 8260 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KIAMBU

SUCCESSION CAUSE NO. 53 OF 2016

IN THE MATTER OF THE ESTATE OF CECILIA WANJIRU KIBICHE (DECEASED)

R U L I N G

1. Before the court is a Chamber Summons filed on 8th March, 2018 brought under Rules 45, 47 and 83 of the Law of Succession Act and Rules 49, 59 and 73 of the Probate and Administration Rules. The Applicant sought in the main that the court be pleased to issue an order restraining the administrators from interfering with and/or wasting the “physical landscape” in respect of the land parcel described as Longonot/Kijabe Block 4/528 which forms part of the estate of the deceased.  Such order falls within the provisions of order 40 R 1 of the Civil Procedure Rules which is applied to succession causes by Rule 63 of the Probate and Administration Rules.

2. The application is premised on the ground that the Administrator/Respondents herein have not taken lead to distribute the estate since the grant was confirmed on 23rd September, 2016 and appear keen on wasting the said estate.

3. Faith Nyambura Gakuha swore a supporting affidavit as the Applicant herein.  She deposed that she is Peter Gakuha Kibiche’s daughter and a beneficiary to the estate of Cecilia Wanjiru Kibiche(deceased) together with Eliud Gakuha Kibiche, Cecilia Stellah Wanjiru, Cecilia Wanjiru and Loise Kanyi pursuant to the ruling delivered on 23rd September, 2016 by Musyoka J. She contended that since the grant was confirmed on 23rd September, 2016, no steps of administration have been taken by the administrators and if anything, administrators are wasting the said estate by setting up a quarry, leasing the properties forming part of the estate and alienating part of the estate. She further deponed that the administrators have refused to execute documents necessary to facilitate distribution and therefore the vast estate is going to waste.

4. The administrators, Alice Wamaitha and Harriet Wanjiru Githinji filed their grounds of opposition on 15th March, 2018. To the effect the Applicant’s intention is to frustrate their attempt to lodge their intended appeal. The bulk of the material contained in the grounds properly belongs to an affidavit being factual matters.

5. Alice Wamaitha filed a replying affidavit on her own behalf and on behalf of her co-administrator Harriet Wanjiru Githinji. She deposed that the grant herein was confirmed on 23rd September, 2016 and they were dissatisfied with the mode of distribution therein and have since lodged an appeal. She denied that she and her co-administrator, have wasted the estate and asserted, that the instant application is brought in bad faith as they are only trying to get some economic benefit on account of the estate through the activities complained of.  She admitted that the Administrators have leased out a portion of the subject asset to China Wu Yi Ltd for purposes of mining of materials such as stones.  Finally, she urged court to dismiss the application as any order tending to limit the powers of the administrators without proper basis is untenable.

6. The application was canvassed by way of oral submissions. Counsel for the applicant argued that the administrators have leased the subject land parcel to a Chinese entity and the Applicant is apprehensive that delay in the administration of the estate will allow dissipation of the estate. He contended that the Administrators are in breach of Section 83 of the Law of Succession Act and also placed reliance on the case of Charles Gitonga Thuku v Bernard Ngatia Thuku & another (2016) eKLR.

7. Counsel for the Administrators opposed the application and stated that the Administrators have lodged an appeal which will be rendered nugatory if the court allows the application. She submitted that the application relates to land that is not arable, which is vast and that the same has always been leased out to third parties.  She contended that the Applicant’s mother having failed to prove her dependency is using the Applicant as a proxy to hinder distribution.  Finally it was submitted that the Administrators would suffer irreparably damage if the lease to China Wu yi Ltd is cancelled.  The Administration relied on the case of Giella Cassman Brown Ltd & Co. Ltd. [1973] EA 358.

8. The court has considered the material canvassed in respect of the  Summons as well as arguments made by the parties for and in  opposition thereto.  The history of this matter is captured in the latest  rulings of this court as delivered on 23rd September 2016 (Musyoka, J)  and on 8th February 2018 (Ngugi, J).  The record is replete with  applications and counter – applications.

9. Regarding the present application, there is no dispute that the  Administrators have not commenced the administration of the estate  in accordance with the orders of Musyoka J.  Their subsequent  application for stay pending appeal was rejected but leave to appeal  was allowed.  It is admitted by the  Administrators that they have  allowed third parties, including China  Wuyi Ltd to embark on  mining and quarrying activities on a portion of  one of the assets of the  estate, namely, Longonot/Kijabe Block 4/528, on the basis of what they  refer to as a “short term lease”.

10. Their justification is that the intention is to obtain some “economic  benefit for the estate” and that such activities are not new as they  have been going  on even during the life time of the deceased.  To the  Administrators, the only novelty is that the current lessee is using  mechanized equipment and that besides, as Administrators, they will  eventually  account for the income thereby generated.  The  Administrators also reiterate that they are intent on pursuing their  appeal regarding the decision dismissing their claims to the estate  herein.

11. The duties of personal representatives are fiduciary in nature. Section  83 of the Law of Succession Act provides that:

“Personal representatives shall have the following duties:

(a) to provide and pay out of the estate of the deceased,  the expenses of a reasonable funeral for him;

(b) to get in all free property of the deceased, including  debts owing to him and moneys payable to his personal  representatives by reason of his death;

(c) to pay, out of the estate of the deceased, all expenses  of obtaining their grant of representation, and all other  reasonable expenses of administration (including estate  duty, if any);

(d) to ascertain and pay, out of the estate of the deceased,  all his debts;

(e) within six months from the date of the grant, to  produce to  the court a full and accurate inventory of the  assets and  liabilities of the  deceased and a full and  accurate account of all dealings therewith up to the  date of the account;

(f) subject to section 55, to distribute or to retain on trust  (as the case may require) all assets remaining after  payment of expenses and debts as provided by the  preceding paragraphs  of this section and the income  therefrom, according to the  respective beneficial  interests therein under the will or on intestacy, as the case  may be; [Rev. 2012] Law of Succession  CAP. 160 L13-33  [Issue 1] (g) within six months from the date of  confirmation of the grant, or such longer period as the  court may allow, to complete the administration of the  estate in respect of all matters other than continuing  trusts, and to produce to the court a full and accurate  account of the completed administration;

(h) to produce to the court, if required by the court, either of its own  motion or on the application of any  interested party in the estate, a full and accurate  inventory of the assets and liabilities of the deceased and  a full and accurate account of all  dealings therewith up  to the date of the account;

(i) to complete the administration of the estate in respect  of all  matters other than continuing trusts and if required  by the court, either of its own motion or on the application  of any interested party in the estate, to produce to the  court a full  and accurate account of the completed  administration”

12. While the Administrators claim to have administered the deceased’s  estate “faithfully” for 13 years, they provide no evidence that they have  carried out any of the responsibilities set out in this section.  The record  contains no accounts filed by them in respect of their said  administration.  And while it is true that they cannot be accused of  intermeddling while acting on the authority of their appointment, and  in light of their powers under Section 82 of Law of Succession Act, the  Administrators by their affidavit do not evince any eagerness to  complete the administration.  On the contrary, they appear bent on  delaying the same as they pursue their own appeal in the Court of  Appeal.  The beneficiaries are therefore caught up in an unenviable  position; the persons responsible for distributing the estate are  themselves pursuing a challenge to the determined distribution,  which challenge seems adverse to the beneficiaries’ present  interests.

13. Meanwhile, the Administrators admit to have allowed a third party to  undertake extensive mining and quarrying for stones and other material  on a part of the stated asset of the estate.  The principles guiding the  grant of an interim injunction are well settled.  The successful Applicant  must  establish a prima facie case with a probability of success, and  demonstrate likelihood of irreparable damage.  In case of  doubt the  court will consider the balance of convenience.  See Giella v Cassman  Brown & Co. Ltd. [1973] EA 358.  As to what constitutes a prima  facie  case, the Court of Appeal expressed itself as follows in Nguruman  Ltd v Jan Bonde Nielsen and 2 Others [2014] e KLR:

“Recently, this court in Mrao Ltd. V. First American Bankof Kenya Ltd & 2 others [2003] KLR 125 fashioned a     definition for “prima facie case” in civil cases      in the following words:

“In civil cases, aprima faciecase is a case in which on  the  material presented to the court, a tribunal properly  directing  itself will conclude that there exists a right  which has  apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter.  Aprima faciecase is more than an arguable case.  It is not sufficient to raise issues but the evidence must show an infringement of a right, and the probability of success of the applicant’s case upon trial. That is clearly a standard, which is higher than an arguable case.”

We adopt that definition save to add the following conditions by way  of explaining it.  The party on whom the burden of proving  a prima faciecase lies must show a clear and unmistakable  right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive and there must be an urgent necessity  to prevent the irreparable damage that may result from the  invasion.  We reiterate that in considering whether or not a prima faciecase has been  established, the court does not hold a mini trial and must not examine  the merits of the case closely.  All that the court is to see is that on the face of it the person applying for an injunction has a right which has been or is threatened with violation.  Positions of the parties are not to be proved in such a manner as to give a final decision in discharging a prima faciecase.  The applicant need not establish title it is enough if he can show that he has a fair and bona fidequestion to raise as to the existence of the right which he alleges.  The standard of proof of that prima faciecase is on a balance or, as otherwise put, on a preponderance of probabilities.  This means no more than that the Court takes the view that on the face of it the applicant’s case is more likely than not to ultimately succeed."

14. The Court further stated that the three considerations governing the  grant of injunctions at interlocutory stage are considered as sequential  hurdles

15. In this cause, the court has already determined that the Applicant and  others like her are the only beneficiaries entitled to share in the not-so  meagre estate of the deceased.  It appears that the Administrators are  aggrieved that they were by the said decision excluded from benefitting  from the estate and have preferred an appeal to the Court of Appeal.   On the face of it, their interests are in direct competition with those of  the declared beneficiaries. Secondly, the Administrators have  evinced an intention to allow third parties to mine the land using heavy  equipment, an action that may permanently alter or degrade the  affected asset, to the detriment of the beneficiaries.  At this stage, this  court cannot determine whether the said land is arable or useful for  other activities besides mining.  Further, it cannot be predicted with  certainty when the intended appeal will be concluded and whether by  that date the asset will retain any value if the mining is allowed to  continue.

16. The court also notes that there is no order staying the distribution of  the estate, and in the result is satisfied that a case has been made out  for the issuance of a temporary injunction in terms of prayer (2) of the  Summons, pending the distribution of the estate in accordance with the  judgment of Musyoka J.  Moreover, in view of the obvious disinclination  by the Administrators to administer the estate to completion, this court  directs pursuant to Section 83 (g) of the Law of Succession Act, that the  Administrators do proceed with the administration of the estate to  completion, within a period not exceeding 6 (six) months of today’s  date, and to produce to the court a full and accurate account of the  completed administration on or before the 15th of October, 2019.

17. In light of the above directions prayers 4, 5, 6 and 7 are not granted.   Moreover, Prayer (3) cannot be granted in an interlocutory application  and is rejected.  Parties will bear own costs.

DELIVERED AND SIGNED AT KIAMBU THIS  5TH DAY OF APRIL 2019

....................

C. MEOLI

JUDGE

In The Presence of:-

Miss Kori holding brief for Applicant and Respondents counsels

Mr. Mirie and Miss Wambua, respectively

Court Clerk - Kevin