In re Estate of Kamatu Mwanthi Kamau alias Kamatu Mwanthi - Deceased [2022] KEHC 1931 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MACHAKOS

(Coram: Odunga, J)

SUCCESSION CAUSE NO. 526 OF 2014

IN THE MATTER OF THE ESTATE OF KAMATU

MWANTHIKAMAU alias KAMATU MWANTHI - DECEASED

MARY KANINI KAMATU..................................................PETITIONER/APPLICANT

-VERSUS-

JANE WANJIRU GITONGA WACHIRA........................................1ST RESPONDENT

FREDO GITONGA KAMATU.........................................................2ND RESPONDENT

RULING

1. By Summons for Rectification of Grant Notice of Motion dated 27th October, 2021, the Applicant herein, Geoffrey Mwathi Kamatu, seeks the following orders:

1.  Spent.

2. THAT the Honourable Court does issue an order rectifying the Grant issued to Mary Kanini Kamatu and Jane Wanjiru Gitonga by this Court on 25th June, 2016 by replacing Jane Wanjiru Gitonga as administrator with Geoffrey Mwanthi Kamatu.

3. THAT this Honourable Court does issue an Order rectifying Grant issues to Mary Kanini Kamatu and Jane Wanjiru Gitonga by this Court on 25th June, 2016 by directing that Mary Kanini Kamatu and Geoffrey Mwanthi Kamatu be the joint administrators for the estate of the late Kamatu Mwanthi Kamatu alias Kamatu Mwanthi

4. Spent.

5. Costs of this application be provided for.

2. According to the Applicant, he is a beneficiary of the estate of the deceased. It was his averment that one of the Administrators, Jane Wachira Gitonga Wachira who was appointed to act as an administrator of the deceased’s estate, died on 3rd August, 2021. As a result, the beneficiaries of the estate of the deceased herein agreed to have the applicant replace the said Jane Wachira Gitonga Wachira and to act alongside the remaining administrator, Mary Kanini Kamatu. It was his averment that the said replacement is geared towards the smooth distribution and transmission of the deceased’s estate to the lawful beneficiaries and that none of the parties stand to be prejudiced if the orders sought are granted.

3. Section 66 of the Law of Succession Act, Cap 160, Laws of Kenya provides that:

When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference—

a. surviving spouse or spouses, with or without association of other beneficiaries;

b. other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;

4. It is therefore clear that the ultimate power as to whom the grant of representation ought to be made rests with the Court. In arriving at that determination the Court is to be guided by the provisions of section 66 of the said Act. In other words, in the absence of any impediment, the grant ought to be issued in accordance with the said provision.

5. Although the Petitioner had indicated that she was opposed to the summons, no formal opposition was filed. The averment that one of the administrators is dead is therefore not contested and the consent by the beneficiaries of the estate nominating the applicant herein to substitute the deceased administrator is similarly not challenged.

6. In the absence of any objection to the summons and as the beneficiaries are agreeable to the Applicant replacing the said Jane Wachira Gitonga Wachira,I find this Summons merited and I hereby direct that the Grant issued to Mary Kanini KamatuandJane Wanjiru Gitongaby this Court on 25th June, 2016 be and is hereby rectified by replacing Jane Wanjiru Gitongaas administrator withGeoffrey Mwanthi Kamatuand that the two are hereby appointed as the joint administrators for the estate of the lateKamatu Mwanthi KamatualiasKamatu Mwanthiand afresh/rectified Grant to issue accordingly.

7. It is so ordered.

READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 7TH DAY OF MARCH, 2022

G V ODUNGA

JUDGE

In the presence of:

Mr Mapesa for the Petitioner

Mr Maramba for the Respondents/Applicants

CA Susan