In re Estate of N H S (Deceased) [2017] KEHC 9483 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

FAMILY DIVISION

SUCCESSION CAUSE NO. 2759 OF 2002

IN THE MATTER OF THE ESTATE OF N H S (DECEASED)

D K S.............................................APPLICANT

VERSUS

N S S........................................RESPONDENT

(Minor suing by next friend  A S P)

RULING

1. The deceased N H S  died on 11th January 2000.  He left a Will made on 14th May 1999 in which the executors were M K H P S, K D P and A J.  On 1st November the three filed a petition for the grant of probate.  On 10th January 2003 a grant of letters of administration with written Will was issued to them.  The grant was confirmed and certificate issued on 6th January 2004.

2. On 25th October 2016 the applicant D K S applied to substitute A J as an administrator of the estate of the deceased.  A J died intestate on 15th September 2015.  This was why the applicant sought to replace him so that he would join M K H P  S and K D P in the administration of the estate.  His case was that no transaction could be undertaken in the administration without the substitution as the deceased’s property LR 209/[particulars withheld] had been registered in the name of the three administrators.  He stated that if the application was not allowed the administration could not proceed, as no transaction could be done on the property.  The two administrators supported the application.

3. The application was  opposed by Minor beneficiary N.S.S. (suing through next friend A S P whose case was that Mudaye Kathambi & Co. Advocates for the applicant were not properly on record as the purported change of advocates had not been served on the Minor’s advocates; that the court had issued an order for the maintenance of the minor and the same had not been obeyed; the applicant was guilty of material non-disclosure; the application was not properly ground; and the annexed consent of the other administrators lacked independent verification.

4. The Minor also filed a notice of preliminary objection.  However, the objection had a number of issues touching on evidence.  It is trite that any assertion which claims to be a preliminary objection yet it bears factual aspects calling for proof, or seeks to advance evidence of its authentication is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed (Mukisa Biscuit Manufacturing Co. Ltd –v- West End Distributors Co. Ltd [1969] EA 696).

5. On the merits, under section 81 of the Law of Succession Act (Cap. 160):

“Upon the death of one or more of several executors or administrators to whom a grant has been made, all the powers and duties of the executors or administrators shall become vested in the survivors or survivor of them.”

It follows that, now that A J died all the powers and duties became vested in the remaining administrators M  K H P S and K D P.

6. Further, the applicant did not indicate how he was related to the late A J, and whether he was one of the beneficiaries of the deceased subject of the Estate.  He stated that the late A J had died intestate.  He did not state that he had, by appointment by the court, become the administrator of his estate.  He could only acquire the power to sue or be sued on behalf of the estate of A J if he had a grant in respect of his estate.  This is what sections 3and82(a) of the Act provide (Trouistik Union International & Another –v- Mbeyu & Another [2008]I KLR (G & F) 730).To that extent, the applicant lacks capacity to bring this application.

7. It was stated that the administrators’ intend to sell the property subject of the estate because the estate’s funds were held at Imperial Bank Limited which went under.  I have read the ruling issued on 22nd April 2016 by Judge Achode in this matter.  Citing Clauses 4 and 5 of the deceased’s Will, she found that the immovable property which was co-owned by the deceased and his two brothers could only be sold by agreement of the two brothers and the beneficiaries, and that the disposal of the property could only be done when the minors attained the age of 21 years.  It is certain that the administrators cannot imagine of selling the estate property until the conditions have been met.

8. In short, the application will be dismissed with no orders as to costs, except that the grant and certificate of confirmation shall be amended to reflect M K H P S  and K  D P as the administrators of the estate of the deceased N  H S.

DATED and DELIVERED at NAIROBI this 5TH day of OCTOBER 2017

A.O. MUCHELULE

JUDGE