In re Estate of Peris Wambui Matiru (Deceased) [2018] KEHC 9321 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

FAMILY DIVISION

SUCCESSION CAUSE NO. 222 OF 2013

IN THE MATTER OF THE ESTATE OF PERIS WAMBUI MATIRU (DECEASED)

VIVIENE NJERI MATIRU............................................1ST APPLICANT

C T M................................................................................2ND APPLICANT

MATILDA RHODA NYAMBURA MATIRU..............3RD APPLICANT

VERSUS

VIOLET WANDAHO MATIRU................................1ST RESPONDENT

MARGARET WANJIKU MATIRU..........................2ND RESPONDENT

RULING

1. The deceased Peris Wambui Matiru died intestate on 28th March 2001 at the Nairobi Hospital. She left her husband Amon Matiru Ngwaci and children:

a) Viviene Njeri Matiru (1st applicant);

b) C T M (2nd applicant);

c) Grace Njeri Matiru;

d) Violet Wandaho Matiru (1st respondent;

e) Matilda Rhoda Nyambura Matiru (3rd applicant); and

f) Margaret Wanjiku Matiru (2nd respondent).

A grant of letters of administration intestate was issued to Amon Matiru Ngwaci on 26th April 2013.  The grant was consequently rectified to include the respondents as co-administrators of the estate.  On 17th August 2016 Amon Matiru Ngwaci died.  That left the respondents as the only administrators.

2. The estate left by the deceased comprised:-

(a) LR No. 209/397/5, Nairobi, which  is a double storey building with flats and rooms majority of which are leased; and

(b) LR No. 8491/1 (IR No. 138588) measuring about 50 acres.

3. In the application dated 26th June 2017 the 1st and 2nd applicants sought to be appointed as administrators of the estate, to co-administer the estate with the respondents.  In the affidavit sworn by Viviene Njeri Matiru to support the application she stated that the present administrators (the respondents) had disputes among them that made it impossible to have proper management of the estate, hence their request to be joined.  It was alleged that the 2nd respondent was responsible for the wasting of the estate.  It was pleaded that the law allowed for upto four administrators.  The application was opposed by the 1st respondent who alleged that the 2nd respondent has mental illness history and therefore lacks the capacity to administer the estate.  She stated that the 2nd applicant had been prevented from completing his university education and earning a living throughout his entire life owing to that mental illness.  The 2nd applicant stated, in response, that he has recovered from the mental illness.  The application to have the 1st applicant to be joined as co-administrator was not opposed.

4. I do not find that the allegations that the present administrators have either mismanaged or wasted away the estate of the deceased have been materially substantiated.

5. The earlier application dated 19th April 2017 was brought by the 2nd applicant.  The 2nd applicant occupies the servant quarters of LR No. 209/397/5 which he is being asked to vacate from.  It does appear from the 1st respondent’s replying affidavit that the beneficiaries sat and agreed on who should get which rent from which flats and rooms, and what rent would go towards the maintenance of the premises.  The 2nd applicant continued occupation of the quarters goes against the family agreement in that regard.  The 2nd applicant has lived in the servant quarters since 1990.

6. In my considered view, the parties are avoiding to deal with the substance of the dispute, which is the sharing of the estate among them.  This is the elephant in the room, and the only way to end the dispute in a substantive way.  There has been a grant in place since 26th April 2013.  The law required that after six (6) months following the grant the administrators file an application for the confirmation of the grant.  Now that the beneficiaries are known, their respective shares have to be determined to bring the matter to a close.

7. I will not allow any of the two applications.  Instead, I ask that, within 30 days from today, each side files and serves an application for the confirmation of the grant.  With the application, each side will swear and file an affidavit indicating how they want the estate to be shared.  Upon service, each side shall have 14 days to file and serve any further affidavit(s).  The matter shall then be mentioned for directions on the hearing of the same.  Each side shall bear own costs on the two applications.

DATED and SIGNED at NAIROBI this 12TH day of JULY 2018

A.O. MUCHELULE

JUDGE

DATED and DELIVERED at NAIROBI this 16TH day of JULY 2018

J. N. ONYIEGO

JUDGE