In re Estate of Daniel Macharia Daniel Macharia alias Daniel Kago alias Kago Mukore alias Daniel Kago Mukore (Deceased) [2019] KEHC 11027 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

FAMILY DIVISION

SUCCESSION CAUSE NO. 2859 OF 2012

IN THE MATTER OF THE ESTATE OF DANIEL MACHARIA ALIAS DANIEL

KAGO ALIAS KAGO MUKORE ALIAS DANIEL KAGO MUKORE  (DECEASED)

GLADYS WAMBUI KAGO.........................................APPLICANT

VERSUS

MERCY NDUTA KAGO..........................................RESPONDENT

RULING

1. The deceased Daniel Macharia alias Daniel Kago alias Kago Mukore alias Daniel Kago Mukore died intestate on 27th September 2012.  On 6th August 2012 a joint grant of letters of administration intestate was issued to Gladys Wambui Kago (the applicant) and Esther Wanjiku Kago.  On 14th September 2017 an order was made by this court for the rents from tenants occupying the deceased’s Githunguri/ Kanjai/1439 be collected by the administrators and deposited into an account to be jointly opened and operated  by them and the respondent Mercy Nduta Kago.  Prior to the order the rent was being collected exclusively by the respondent.

2. On 18th December 2017 the applicant brought the present application asking that the respondent be cited for contempt and be punished for a period of 6 months for having disobeyed the order given on 14th September 2017.  Her case was that despite the respondent having been aware of the order, and having been served with the same, she had failed to avail herself in the bank to sign account opening documents, and had instead continued to collect and spend the rent from the tenants in the premises.  It was submitted on behalf of the applicant by her advocate that the actions of the respondent were in disobedience of the court order, were disrespectful of the court process, and were in contempt of the court order.

3. The application was served but did not elicit any response.

4. The ruling of 14th September 2017 was delivered in the presence of counsel for the respondent.  It was deponed that the orders were extracted (“GW1”) and, together with a forwarding letter (“GW2”), served on the respondent’s advocates on 24th November 2017.  No reason has been given why the respondent has not availed herself to open the joint account, and why she continues to collect and use rent that belongs to the estate and which should be protected until the estate has been shared.  The responsibility to manage the estate belongs to the administrators, one of whom is the applicant.

5. The respondent had unqualified obligation to obey the order, which I find, she was aware of.  She did not obey.  The disobedience, I find, was wilful.  The disobedience has undermined the authority of this court.

6. I am aware that contempt of court is quasi-criminal.  It is an offence that may be punished by committal.  The standard of proof is higher than proof on a balance of probabilities but not as high as proof beyond reasonable doubt (Mutitika and Others –v- Baharini Farm Limited 91982 – 88] 1KAR 863).The applicant has met the standard in the application.

7. I find the respondent guilty of contempt of court.  She is directed to appear on 11th March 2019to show cause why she should not be punished in accordance with the law.

DATED and SIGNED at NAIROBI this 5TH day of FEBRUARY 2019.

A.O. MUCHELULE

JUDGE

DATED and DELIVERED at NAIROBI this 11TH day of FEBRUARY 2019.

ALI-ARONI

JUDGE