In re Estate of Robert John Sumbi (Deceased) [2022] KEHC 26996 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

FAMILY DIVISION

SUCCESSION CAUSE NO. E1564 OF 2020

IN THE MATTER OF THE ESTATE OF ROBERT JOHN SUMBI- DECEASED

SUSSY KHAADI NANDAMA...............................................1ST PETITIONER

NATALY NARONO SUMBI.................................................2ND PETITIONER

VERSUS

YVONNE TUNAI................................................................1ST RESPONDENT PATRICK LUMUMBA.....................................................2ND RESPONDENT STEPHEN KEDOGO.........................................................3RD RESPONDENT

AND

TRAIL MY CAR..........................................................INTERESTED PARTY

RULING

1. It is not disputed that the 1st petitioner Sussy Khaadi Nandama got married to the deceased Robert John Sumbi on 19th November 2020 under the Marriage Act (Cap. 150 now repealed). They got children. The deceased died on 29th October 2020. Following the death, there was a burial dispute in CMCC NO. E44 of 2020 at Kakamega between the 1st petitioner and the 1st respondent Yvonne Tunai, the latter claiming to have been married customarily by the deceased. Upon hearing the parties, the court found that the 1st petitioner had established that she was the deceased’s legal wife but that the 1st respondent had not proved that she was the deceased’s wife. The 1st petitioner was allowed to bury the deceased. It is evident that the orders followed an interlocutory application in the suit. The suit itself has not been heard and determined, which means that the findings above were preliminary. The suit has since been transferred to Nairobi and consolidated with this succession cause.

2. According to the 1st petitioner the deceased died intestate. The 1st respondent states that the deceased left a written Will, but she has not placed on record the original Will. She is relying on a copy of the said Will.

3. The dispute between the 1st petitioner and the 1st respondent is over a motor vehicle registration number KCF 454D make Toyota Prado which was registered in the name of the deceased. It would appear that when the deceased died he was staying with the 1st respondent. The 1st respondent states that the deceased bought the vehicle for her use. She is using and/or hiding it. The 1st petitioner has not been able to access it. Her case is that she is the legitimate widow of the deceased who should collect, gather and preserve all the property left by the deceased, and that the property includes the vehicle. In an application dated 27th August 2021 she asked the court to issue an order compelling the 1st respondent and the 2nd respondent (Patrick Lumumba) to produce the vehicle and place it in the custody of the court. The application alleged that the 1st respondent was keeping the vehicle at her home in Lubao in Kakamega. She asked for an order directing the Director of Criminal Investigations to recover the vehicle and bring it into the court, and to cite the respondents for intermeddling with the vehicle.

4. The 2nd respondent’s response was that he had been illegally dragged into the proceedings as he did not have the vehicle, and had nothing to do with it or with the dispute. The 1st respondent’s case was that the vehicle was bought by the deceased for her as his wife, and that it was in that capacity that she had the vehicle. She then pleaded that the court had no jurisdiction to hear and determine the dispute because the 1st petitioner had no grant of letters of administration in respect of the estate of the deceased, and therefore lacked capacity to bring the claim.

5. The 1st petitioner said that she had capacity because she was a holder of a special limited grant in the cause.

6. Section 79 of the Law of Succession Act (Cap. 160) provides that-

“The executor or administrator to whom representation has been granted shall be the personal representative of the deceased for all purposes of that grant, and, subject to any limitation imposed by the grant, all the property of the deceased shall vest in him as personal representative.”

7. Under section 82(a) of the Act it is the executor or administrator to whom representation has been granted who can enforce, by suit or otherwise, all causes of action which, by virtue of any law, survive the deceased or arising out of his death for his personal representative. Section 45 of the Act makes it illegal for any person, who is not the holder of grant of probate or grant of letters of administration intestate, or who has no authority of the court, to take possession or dispose, or otherwise intermeddle with, any free property of a deceased person.

8. The 1st petitioner obtained a grant of letters of administration ad litem that enabled her to sue the 1st respondent in Kakamega. Before the court, she obtained a special limited grant to be able to access the deceased’s account to get money for the fees of her children. In this cause she has petitioned for a full grant of letters of administration intestate. No grant has yet been issued to her.

9. The present application was brought under section 45 of the Act and rule 73of the Probate and Administration Rules. It is evident that, without the grant of letters of administration intestate, the 1st petitioner lacks capacity to sustain this application. Without a grant, the property of the deceased cannot rest in her.

10. The 1st petitioner obtained orders from Kakamega Court for the 1st respondent to hand over the vehicle to her. The 1st respondent stated that she moved the High Court by way of judicial review and obtained a stay. The 1st petitioner’s response was that the stay lapsed when the 1st respondent failed to bring the substantive claim within the ordered 21 days. My preliminary view is that, if the 1st petitioner obtained an order in regard to the vehicle and the 1st respondent disobeyed it, she (1st petitioner) should bring contempt proceedings. This is because court orders are not issued in vain. Once issued, and not successfully reviewed or appealed against, they have to be obeyed. It matters not they this may be irregular, illegal or void.

11. The result is that the application dated 27th August 2021 is disallowed. I make no order as to costs.

DATED AND SIGNED THIS......................................DAY OF MARCH 2022

A.O. MUCHELULE

JUDGE

DATED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 28TH DAY OF MARCH 2022

A.O. MUCHELULE

JUDGE