In re Estate of Eutycus Muthui (Deceased) [2021] KEHC 3728 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

SUCCESSION CAUSE NO. 398 OF 2012

IN THE MATTER OF THE ESTATE OF EUTYCUS MUTHUI (DECEASED)

BETWEEN

MIRIAM KENDI MUTHUI..........................................1ST APPLICANT

CATHERINE KINYA MUTHUI..................................2ND APPLICANT

AND

JAMES KIMATHI MUTHUI...........................1ST ADMINISTRATOR

LINCOLN MUTHUI MUITA..........................2ND ADMINISTRATOR

RULING

1. By chamber summons dated 01st April, 2021 and filed on 07th April, 2021, the 1st Administrator seeks orders THAT:

a)The Honourable be pleased to rectify the grant issued on 27th April, 2020 to include SAFARICOM SHARES- A/C NO.xxxxxxxxxxxand distribute the same to the Applicant

b)The Honourable be pleased to stay the orders issued on 18th March, 2021 pending the hearing and determination of this application

c)The Honourable be pleased to order that the costs and expenses incurred by the 1st Administrator in the process of preservation, protection and administration of the estate amounting to Kshs. 2,000,000/- be borne and payable by the estate of the deceased

d)Costs be in the cause

2. In an undated replying affidavit sworn and filed on 18th May, 2021 faults the 1st Administrator for not involving family members prior to expending his own resources, did not apply to rectify the grant to include the SAFARICOM SHARES and finally on the ground that this application is desired to delay the distribution of the estate.

3. In a rejoinder, the 1st Administrator by his supplementary affidavit sworn on 26th May, 2021 and filed on 27th May, 2021 contends that he has performed his duties and is by law entitled to recover his expenses.

Analysis and determination

4. I have considered the application in the light of the supporting affidavit, the replying affidavit and supplementary affidavit and submission on behalf of the parties.

5. I have also considered numerous rulings made in this matter. Of particular interest is a ruling dated 27th April, 2020 where the court noted at paragraph 14 dd that the beneficiaries were in agreement that the following shares be distributed to the 1st Administrator:

i. Nation Media group Ltd Acc No.xxxxxxx

ii. Centum Investment Co Ltd Acc No.xxxx

iii. Standard Chartered Bank Kenya Ltd Acc No.xxxx

iv. Ntimanyakiru Sacco Acc No.xxxx

v. Ntima Society Acc No.xxx

vi. Kengen Co Ltd. Acc No xxxxx

vii. Kenya Airways Ltd Acc No.xxxxx

viii. Mumias Sugar Co Ltd CDSC B/xxxxxxx/LI-0

6. It is worth noting that the 1st Administrator, well knowing that the deceased also owned SAFARICOM SHARES- A/C NO.xxxxxxxxxxxconcealed this information from the court and the same remains undistributed.

7. Section 83(c) and (d) of the Law of Succession Act requires administrators to pay out of the estate all the expenses of obtaining the grant and all other reasonable expenses of the administration and to ascertain and pay, out of the estate of the deceased, all his debts. (See In re Estate of Mukhobi Namonya (Deceased) [2020] eKLR).

8. Section 83 (e) requires the administrators to within six months from the date of the grant, produce to the court a full and accurate account of all dealings therewith up to the date of the account.

9. Whereas I am in agreement with the 1st Administrator that he is entitled to reimbursement of his expenses and litigation costs over assets forming the estate, he has to date not rendered an account of what these expenses were, how they were incurred and how they were settled. Consequently, I find that an order that the expenses be paid fromSAFARICOM SHARES is premature and cannot issue at this stage.

10. Having said that, I pronounce that the 1st Administrator does not stand to be prejudiced and no meaningful purpose will be served in staying this court’s order of 18th March, 2021 for the reason that the 1st Administrator concedes that the value of the undistributed SAFARICOM SHARES is sufficient to compensate his expenses once established.

11. Having considered the chamber summons dated 01st April, 2021 and filed on 07th April, 2021 as analysed above, I find that it has no merit and it is dismissed with costs to be borne by the 1st Administrator.

DATED AT MERU THIS 23RD DAY OF SEPTEMBER 2021

WAMAE. T. W. CHERERE

JUDGE

Court Assistant -Morris Kinoti

For Applicants - M/s. Kevin Nyenyire & Co. Advocates

For 1st Respondent - N/A for M/s. Thangichia M.David Advocates

For 2nd Respondent - N/A