In re Estate of David Kaindi Mbului (Deceased) [2022] KEHC 2730 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MAKUENI

SUCCESSION CAUSE NO. 34 OF 2017

FORMERLY MACHAKOS SUCCESSION CAUSE NO. 93 OF 2003

IN THE MATTER OF THE ESTATE OF DAVID KAINDI MBULUI (DECEASED)

ESTHER NDETE MBULUI

ERICK MUSYA KAINDI..........ADMINISTRATORS/APPLICANTS

-VERSUS-

DANIEL KIOKO KAINDI................................................OBJECTOR

RULING

1. Before me is an application dated 7th August 2020 brought by the two administrators Esther Ndete Mbului and Eric Musya Kaindi under section 45 and 47 of the Law of Succession Act (cap.160).

2. The application seeks the following two orders –

1) That an order do and is hereby issued directing the County Commander of Makueni and Machakos Counties and/or Ward Commanders and/or any officer under them within whose jurisdictions the properties of the estate herein are situated to provide security to the administrators herein together with their appointed surveyors in the course of visiting the suit properties for purposes of carrying out subdivision preparation of  mutationbeaconing and or any other activity required to fully administer the estate herein as per certificate ofconfirmation of grant dated 24th October 2019 and the grant herein.

2) That costs of this application be borne by the objector/respondent.

3. The application has grounds on the face of the summons, inter alia that the objector filed an application for revocation of grant which was dismissed, and that since then the administrators had been unable to fully administer the estate as the objector had been denying them entry to the properties of the estate and more specifically Machakos/Konza North Block 1/122 and had built a fence and gate and runs cottages, bar and restaurant.

4. The application was filed with a supporting affidavit sworn by Esther Ndete Mbului on 7th August 2020 which amplifies the grounds of the application and adds that the orders sought herein would enable the administrators administer the estate. The affidavit annexes a copy of the certificate of confirmed grant of letters of administration issued by the court on 24th October 2019.

5. The application is opposed through an affidavit sworn by the objector Daniel Kioko Kaindi on 21st June 2021, in which it was deponed that there was a pending appeal in the Court of Appeal in respect of this court’s decision on the said estate in dismissing the respondent’s application for review; that the said appeal is Nairobi E031/2020 in which there is a pending application for injunction, and that the objector developed the land with the full consent and knowledge of the applicants.

6. In response thereto, the applicants filed a further affidavit sworn by Esther Ndete Mbului in which it was deponed that the respondents’ application for leave to appeal out of time to the Court of Appeal was dismissed on 18th June 2021.

7. The application was canvassed through written submissions. In this regard, the administrator/applicants’ counsel B.M Mungata & company filed their submissions on 5th October 2021, while the objectors’ counsel Muumbi & company filed their submissions on 7th December 2021.

8. Having considered the application, documents filed and the submissions on both sides, it is apparent from the submissions of the objector’s counsel that what the administrators have stated in their affidavits on the subject land and on the case is the true position, except that the objector thinks that no evidence has been tendered in court to show that the objector obstructed any attempt to survey or subdivide the land. I also note that in terms of the contents of the confirmed certificate of grant of letters of administration, the objector Daniel Kioko Kaindi has been given 2. 6 acres in Malili Ranch Plot Number 112, and in equal share with others in Machakos/Konza North Block 1/122. Thus the objector is entitled to what has been given to him in the confirmed grant of letters of administration and no more.

9. I thus find no reason to decline this application. In the result, I allow the application and grant prayer 1. I make no orders as to costs.

DELIVERED, SIGNED & DATED THIS 2ND DAY OF FEBRUARY, 2022 IN OPEN COURT AT MAKUENI.

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

George Dulu

Judge