In re Estate of Enyasio Gachie Karanja (Deceased) [2022] KEHC 2407 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

SUCCESSION CAUSE NO. 145 of 2013

IN THE MATTER OF THE ESTATE OF ENYASIO GACHIE KARANJA (DECEASED)

DAVID WAITHAKA GACHIE CHARLES   WANARUA GACHIE................APPLICANTS

VERUS

EVAN WMBUGU GACHIE..............................................................................RESPONDENT

RULING

1. The deceased herein died intestate on 26th May, 2012. A grant of letters of administration   intestate was issued to Evan Wambugu  Gachie  and  Charles Wanarua Gachie  on 11th February, 2014 and then confirmed on 9th September ,2014. According to the confirmed grant, the estate was to be shared out equally.

2. Subsequently, by a Chamber Summons dated 19th December, 2019, Charles Wanarua  Gachie  and Godfrey Gichuki Gachie both siblings sought an order  substituting or replacing one  Evan Wambugu Gachie whom they accused of being uncooperative and  reluctant to complete the  administration of the estate. When the said application was mentioned before Justice Thande for directions on 28th September, 2020, the court advised the applicants to file an application for revocation of the grant.

3. Unfortunately the said directive was not complied with. Instead, the applicants once again  moved the court through  a Chamber Summons  dated 30th November, 2020 filed  under certificate of urgency on 1st  December, 2021 seeking  orders as hereunder;

a. That this application be certified as urgent and service be dispensed with in the first instance.

b. That this honourable court  be pleased to  remove Evan Wambugu Gachie as a co-administrator and replace him with  Godfrey Gichuki Gachie and David Waithaka Gachie

c. That this honourable court be pleased to order the respondent to deposit Kshs 14,000,000 being the balance of funds received from Base Titanium Ltd for the sale and purchase of Kwale/Michingirini/521.

d. That pending the hearing and determination of this application a freezing order be placed directly to Equity Bank (Kenya) Ltd Digo Road Branch, Account Number 028xxxxxxx in the name of Evan Wambugu Gachie to prevent any further withdrawals.

e. That pending the hearing and determination of his application freezing order be placed directly at KCB Bank Kenya Ltd, Mvita Branch, and Account Number 11xxxxxxxx in the name of Evan Wambugu Gachie to prevent any further withdrawals.

f. That the respondent be ordered to give an accurate and proper account of the estate properties.

4. The application is premised on grounds stated on the face of it and averments contained in the affidavit in support of the application. Basically, the  applicants  among them one Charles  Wanarua  Gachie  one of the  administrators  currently are seeking removal  of Evan Wambugu as an administrator on grounds that  he has been evasive and intentionally  refused to cooperate  with his co-administrator to  distribute the  estate.

5.  It was further averred that sometime 2021, heirs of the estate herein were approached by Base Titanium Ltd who  were  keen on acquiring L.R Kwale /Michingirini/521 one of the  estate  properties.

6. That after negotiations, it was agreed that the above parcel of land would be sold at a consideration of kshs15,000,000. A compensation agreement having been entered by all beneficiaries, a deposit of 1,000,000 was made through the respondent who shared the same to all beneficiaries.

7. They further   averred that a general transfer was done to Titanium on 20th April, 2021 and the parcel of land in question effectively changed hand in favour of the beneficiaries. That in return, a balance of kshs 14,000,000 was deposited in the respondent’s account pending distribution to beneficiaries as per the certificate of confirmation.

8. They  claimed that  despite receipt of the  said  amount, the respondent has refused and or failed to distribute  the proceeds to beneficiaries hence the  prayer for an  order to  compel him to  distribute the  said amount to beneficiaries and  a freezing order to  prevent  the money from being transferred.

9. In support of the application,  a sale  agreement, transfer  and a letter from  Base Titanium Company  transaction of  kshs 14 million to  the  respondent’s  KCB account were  attached as evidence.

10.   Despite service of the application and hearing notice on the respondent, he did not file any response. The application is therefore unopposed. However, failure to file a response does not automatically mean that the application must automatically succeed. See Supreme Court holding in Gideon Sitelu Konchellah Vs Julius Lekakeny Ole Sunkuli and 2 others   (2018) e KLR where the court held that the fact that an application is not opposed is no guarantee that it must succeed.

11.   In the instant application, the applicants are asking three substantive prayers. Firstly, an order substituting Evan Wambugu as an administrator with David Waithaka Gachie. This prayer was contained in the earlier application dated 29th December, 2019 in respect of which the court directed and advised the applicants to file an application for revocation. Instead of complying   with that direction, a similar prayer was made in this application. This is purely an abuse of the court process. In the   circumstances that prayer cannot issue.  Parties to effect J Thande’s advice.

12. The second prayer is for freezing the account where the sale proceeds were deposited and therefore held.  That prayer was to await determination of the application.

13.    The application having not been opposed, I am satisfied and convinced from the evidence attached herein that the property in question was sold and sale proceeds deposited in the respondent’s account. Since the respondent has failed to respond to the application herein, I am satisfied that there is good reason to preserve the funds in the respondents’ account until he fully gives full statement of accounts on how he has spent or intends  to spend the said amount.

14.   The 3rd prayer is for the court to order the respondent to distribute the sale proceeds. This order shall only apply after the respondent has given an account in so far as the subject sale proceeds is concern.

15.   Accordingly, the application is allowed in the following terms;

a. That a freezing order  restraining any transaction or  dealings in  respect of KCB Bank of Kenya  Mvita Branch  A/C No 11xxxxxxxx and  Equity  Bank Digo Road Branch  A/C No. 028xxxxxxx held  in the name of Evan Wambugu Gachie  be and is hereby  issued  pending further orders  of the court.

b. That the respondent do within 30 days file statements of accounts  showing  how he has  spent or intends to   spend  a sum of 14 million  being  proceeds  received from  Base Titanium  on his own behalf  and  that of the beneficiaries.

c. Mention on 11th March, 2022 to confirm compliance and further directions.

Dated, signed and delivered virtually at Mombasa this 15th day of February 2022

J. N. ONYIEGO

JUDGE