In re estate of Paul Mbugua Kibe (Deceased) [2022] KEHC 562 (KLR)

In re estate of Paul Mbugua Kibe (Deceased) (Succession Cause 2071 of 2020) [2022] KEHC 562 (KLR) (Family) (9 May 2022) (Ruling)

Neutral citation: [2022] KEHC 562 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Succession Cause 2071 of 2020

AO Muchelule, J

May 9, 2022

Between

Rose Nyawira Kibe

Applicant

and

Catherine Njeri Nduati

Respondent

Ruling

1. The beneficiaries of the deceased Paul Mbugua Kibe (who died intestate on 30th November 2009) are:-a.Catherine Njeri Nduati (widow/respondent);b.Cynthia Mumbi Mbugua (daughter);c.Philip Kibe Mbugua (son);d.David Allan Kibe (son); ande.Brian Joel Gatungo (son).

2. The applicant Rose Nyawira Kibe was the former wife of the deceased and she is the mother of David Allan Kibe and Brian Joel Gatungo. The respondent is the mother of Cynthia Mumbi Mbugua and Philip Kibe Mbugua. The applicant and the respondent were appointed the co-administraces of the estate of the deceased.

3. Following an appeal from this court, the Court of Appeal redistributed the deceased’s estate’s of Kshs.32,989,183/= and gave Kshs.9,332,090/50 to the respondent and her children and Kshs.23,657,090/50 to the applicant’s children. The respondent was aggrieved and filed an application to the Court of Appeal to review the decision. The review is pending resolution. There is no stay.

4. It would appear not to be in dispute that during the pendency of the appeal, the parties agreed and withdrew Kshs.32,989,183/= that was in the estate account and distributed it in accordance with the decision by Justice W. Musyoka whose distribution was the subject of the appeal. It was agreed that either party would indemnify the other depending on the determination by the Court of Appeal. Justice W. Musyoka’s distribution was that the respondent and her children get Kshs.15,794,409/= and the applicant’s children get Kshs.17,194,774/=.

5. The Court of Appeal had ordered that the interest on the money be shared on prorata basis. Following the appeal, the applicant’s advocate demanded Kshs.11,742,400/52 to be refunded to her. This was to include the aspect of interest. She said the interest had grown to Kshs.3,431,041/85 as of September 2017. There was no response. She sought to withdraw the Kshs.3,431,041/= interest money and have the joint account operated by both lawyers closed. The applicant swore that the respondent had refused to execute documents to close the account and have the money shared accordingly. She sought that the respondent be compelled to execute documents failing which the Deputy Registrar be ordered to execute them on her behalf.

6. There is Succession Cause No. 2521 of 2009 – In the Matter of the Estate of David Kibe Waweru. David Kibe Waweru was the father of the deceased. His estate is yet to be finalized to determine what is due to the deceased therein. The deceased was one of the beneficiaries. The applicant sought that the Kshs.11,742,400/52 be ordered to be paid from the respondent’s entitlement in the cause. In my view, the request would be speculative. All the parties to the cause in the estate of David Kibe Waweru would have to be heard before the estate therein is distributed. Secondly, no one knows how much the beneficiaries will get from the estate.

7. The respondent filed a replying affidavit to oppose the application. Her case was that she was aggrieved by the Court of Appeal decision and has applied for its review. She sought stay which was not granted. She explained that by the time of the decision by the Court of Appeal all the money had been shared by the parties, except for the interest of Kshs.1,768,064/05 which was in the joint account. The interest had grown to Kshs.3,431,045/=. She further asked that the matter awaits the distribution in the case of David Kibe Waweru, and also that it awaits the review application by the Court of Appeal.

8. As long as the Court of Appeal has not reviewed its decision, this court is bound to execute the decision.

9. Regarding how much has so far been received by either party or the children in respect of this estate, I ask the parties and the advocates to appear with all relevant documents before the learned Deputy Registrar Grace Sitati on 24th May 2022. The Deputy Registrar shall receive evidence on:-a.how much money was paid out from the estate to the parties before the decision by Justice W. Musyoka;b.money paid out by agreement or otherwise following the decision by Justice W. Musyoka;c.how much money, if any, was paid out after the Court of Appeal decision;d.how much interest is in the joint account;e.who owes who how much money following the Court of Appeal variation of the High Court decision; andf.who gets how much from the interest in the account.

10. The Deputy Registrar will submit her report to this court immediately she has made her determination, and give the parties a mention date.

DATED and DELIVERED at NAIROBI this 9TH day of MAY, 2022. A.O. MUCHELULEJUDGE