In re Estate of the Late Jonathan Keesi Ngunzi (Deceased) [2022] KEHC 10363 (KLR)

In re Estate of the Late Jonathan Keesi Ngunzi (Deceased) (Succession Cause 119 of 2004) [2022] KEHC 10363 (KLR) (12 May 2022) (Ruling)

Neutral citation: [2022] KEHC 10363 (KLR)

Republic of Kenya

In the High Court at Machakos

Succession Cause 119 of 2004

MW Muigai, J

May 12, 2022

Between

Justus Kyalo Keesi

1st Petitioner

Lilian Nthambi Keesi

2nd Petitioner

and

Kinyambu Keesi

1st Objector

Kyama Keesi

2nd Objector

Ruling

1. By an Amended Summons brought under Article 159 (2) (d) of the Constitution of Kenya,2010, Sections 66, 71 (2) and 76(e) of the Succession Act, Cap 160 Laws of Kenya and Rules 49 and 73 of the Probate and Administration Rules and section 1A, 2 and 3A of the Civil Procedure Act, Cap 21 of the Laws of Kenya, the Petitioners sought the following orders;a.That the grant issued on September 22, 2004 and confirmed on July 8, 2008 to Alice Mbesa Keesi , Justus Kyalo Keesi And Lilian Nthambi Keesi be hereby revoked.b.That this Hon Court be pleased to appoint, Justus Kyalo Keesi, Lilian Nthambi Keesi And Samson Kyambo Keesi as co-administrators of the estate of the late Jonathan Keesi Ngunzic.That a fresh grant of letters of Administration intestate of the estate of Jonathan Keesi Ngunzi be issued in the names of Justus Kyalo Keesi, Lilian Nthambi Keesi and Samson Kyambo Keesid.That this Hon Court be pleased to confirm the Grant of letters of administration intestate issued in the name of Justus Kyalo Keesi, Lilian Nthambi Keesi and Samson Kyambo Keesie.That the mode of distribution in the confirmed grant be as follows, parcel numbers;i.Kilala/ Kaumoni/323ii.Kilala/ Kaumoni/422. iii.Kilala/ Kaumoni/365iv.Kilala/ Kaumoni/386v.Plot No 45 Kilalavi.Plot No 5 Kilalavii.An unregistered plot in Kilalaf.All be given to Samson Kyambo Keesi, Justus Kyalo Keesi And Lilian Nthambi Keesi to be held in trust for themselves and other beneficiariesg.That the cost of this Application be in the cause.

2. The Application is supported by the affidavit of Justus Kyalo Keeesi dated June 18, 2021, a co administrator of the estate. He deposed that the grant of letters of administration and the Certificate of Confirmation of Grant were issued on September 22, 2004 and July 8, 2008 respectively. He attached the death certificate dated January 29, 2018 and deposed that Alice Mbesa Keesi, the 1st Administrator died on October 7, 2017 before completion of the administration of the estate making the grant inoperative, thus necessary for issuance and confirmation of a new grant. He also attached consents of the beneficiaries to have Lilian Nthambi Keesi, Samson Kyambo Keesi and himself appointed as administrators.

3. The Applicant Justus Kyalo Keesi, deposed that the beneficiaries at the time of the deceased’s demise were;i.Alice Mbesa Keesi -wife(nowdeceased)ii.Justus Kyalo Keesi -soniii.Lilian Nthambi Keesi -daughteriv.Benjamin Mutua Keesi -sonv.Shadrack Mukuu Keesi -sonvi.Samson Kyombo Keesi -sonvii.Gideon Kilo Keesi -sonviii.Ferdinard Nyamasyo Keesi -sonix.Phoebe Mueni Manthi -daughterx.Ruth Mumbua Keesi -daughterxi.Eunice Ndangwa Keesi -daughter

4. The assets of the deceased the Applicant proposed to be held by the proposed Administrators to be held in trust for all beneficiaries are;i.Kilala/ Kaumoni/323ii.Kilala/ Kaumoni/422iii.Kilala/ Kaumoni/365iv.Kilala/ Kaumoni/386v.Plot No 45 Kilalavi.Plot No. 5 Kilalavii.An unregistered plot in Kilala

Objectors Replying Affidavit 5. The Objectors through Kinyambu Keesi filed a Replying Affidavit dated July 2, 2021 and deposed that the deceased left the following beneficiaries;1ST Wife & Childreni.Kalondu Keesi -Wifeii.Kamanthe Keesi -Daughteriii.Emma Wasya -Daughteriv.Agnes Wandia Keesi -Daughterv.Ignatius Kinyambu Keesi -Daughtervi.Kyama Keesi -Sonvii.Susan Kongu Keesi -Daughterviii.Pauline Mukonyo Keesi -Daughter2Nd Wife & Childreni.Alice Mbesa Keesi - Wife(Deceased)ii.Benjamin Mutua Keesi -Soniii.Phoebe Mueni Manthi -Daughteriv.Shadrack Mukuu Keesi -Sonv.Mumbua Keesi -Daughtervi.Kyombo Keesi -Sonvii.Kiio Keesi -Sonviii.Kyalo Keesi -Sonix.Lilian Keesi -Daughterx.Ndungwa Keesi -Daughterxi.Ferdinard Nyamasyo Keesi -Son

6. The Objector deposed that the Co-administrators secretly lodged succession proceedings without their consent and knowledge and the same was confirmed on July 8, 2008 concealing the fact that there was a 1st family in a bid to disinherit them. He contended that both families are settled on one of the parcels listed for distribution. Further, that they support the prayer for revocation of grant and pray that new administrators be appointed and fresh grant of letters of administration issues in the name of Lilian Nthambi Keesi, Samson Kyombo Keesi, Kinyambu Keesi And Kyama Keesi. He prays that the grant be confirmed in those names and that they hold the properties in trust for the beneficiaries. He alleged that on December 16, 2021 Benjamin Mutua Keesi admitted in court that Justus Kyalo Keeesi was out to disinherit the first family of their share. He opined that having administrators from both families would be fair and just to avoid future conflict.

Further Affidavit 7. The 1st Petitioner filed a Further Affidavit on October 22, 2021 in which he stated that the deceased only had one wife, the late Alice Mbesa Keesi with whom they had ten children. That the deceased paid dowry and the wedding took place at St Andrew Ukia on December 17, 1967 and that the deceased had no other biological children. He contended that the objectors are not biological children of the deceased.

8. He further contended that Kalondu Keesi was an “IWETO”, a woman to woman marriage under Kamba Customary law.

9. He explained the family tree as follows; that Ngunzi Tama Mukuu father to the deceased had five wives including the deceased’s mother Nzembi Ngunzi with whom they had three children, Mwambui Ngunzi, Monica Ngunzi and Jonathan Keesi Ngunzi. Nzembi Ngunzi married one Kalondu Mwathi under Iweto system and the deceased’s mother paid dowry for her to bear more children, because she desired more children, especially sons, for whom she paid dowry to bear more children for her and her husband. Kalondu bore seven children among them the Objectors.

10. He contended that the objectors are the deceased’s step brothers and sisters of the deceased and not his children and therefore have no claim to the deceased’s estate. He contended that Kalondu and her children inherited Plot Number 423 Kaumoni from Ngunzi Tama Mkuu and Nzembi Ngunzi while the deceased and his wife inherited Plot Number 422 Kaumoni. The deceased and his wife, Alice acquired more properties from the neighbors which were all later amalgamated and registered in the name of the deceased by the Ministry of Lands, District Land and Adjudication & Settlement office Makueni.

11. He further contended that the deceased had in public denied severally that the Objectors were not his children and did not support them nor associate with them in any way. He stated Kalondu Mwathi’s children added the name “KEESI” to their name while applying for identity cards knowing very well that they were his step brothers and sisters and not his children.

12. The deceased never gave Kalondu Mwathi and her children Kikala /kaumoni/422 also known as Plot No 422 Kaumoni or Kikala/kaumoni/386 also known as PlOT NO 386 Kaumoni, properties he had acquired with his wife. In fact he told them to vacate part of Kikala/kaumoni/386 which they had encroached on and go back to the land inherited from Nzembi Ngunzi and Tama Ngunzi severally in Clan meetings. He even uprooted sisal that was planted by the Objectors. In one incident, the 1st objector attacked the deceased co-workers but was disarmed by a village elder, Munywoki Miili and Shadrack Mukuu Keesi.

13. The 1st Objector filed an assault case against Munywoki and Shadrack and it was the deceased’s testimony during the hearing that he again stated that the 1st Objector was not his son but a trespasser in Kikala /kaumoni/386 and the case was later dismissed. He deposed that the onus is on the Objectors to prove paternity though DNA testing.

14. Further, the deceased had donated part of Kikala /kaumoni/386 to African Inland Church where a church has been erected and part of it to his niece which he wouldn’t have done if the land did not belong to him.

15. He deposed that the Petition for letters of administration was done with the consents of all the beneficiaries including Benjamin Mutua Keesi, gazetted on May 14, 2004 giving notice to all and sundry. He further deposed that he Objectors and Mutua Keesi have been intermeddling with the estate property including selling, trespassing and occupying the rest of it leading to Makueni ELC No 337 of 2017 (formerly Nairobi ELC 910 of 2013) Alice Mbesa Keesi & 2 others vs Benjamin Mutua Keesi & 9 others inter alia seeking orders for vacant possession which has been stayed pending outcome of these proceedings.

16. He contended that vide letter dated June 6, 2007 from the District Land Adjudication & Settlement board, Land Parcels 323, 365, 386 and 422 were in the name of the deceased which had been trespassed by John Kato aka Daniel Kato aka Daniel Kato John Ndambuki, Rose Ngina, Patrick Wambua Nzomo and Thaddeus Mutuku Silingi aka Mutuku Silingi, with the last person claiming to be the brother and son of the deceased entering into agreements for sale. He further contended that Patrick Wambua Nzomo and Rose Ngina had cultivated the piece of land they allegedly purchased from the Objectors with the later selling her portion to a third party and the Objectors purported to sell this particular piece of land via a sale agreement dated October 19, 2012 for Kshs 350,000 claiming it to be the 1st Objector’s property.

17. He deposed that the Objectors purported to sell Kikala/kaumoni/422 was to Thaddeus Mutuku Shillingi for Kshs 1,185,000 measuring 20 acres which he lives on and cultivates. As regards Kikala/kaumoni/365, the late Musau Masola had trespassed and occupied it.

18. Benjamin Mutua Keesi purported to sell Kikala/kaumoni/323 to John Kato but upon asking their late mother, she forbade the same and even wrote a letter to the Chief dated January 14, 2011 warning all interested buyers and in turn, the Senior Assistant chief wrote a letter to John Kato warning him of the same. Further the District Land Adjudication & settlement officer wrote to Benjamin Mutua Keesi advising him to stop any sale of the property vide a letter dated January 18, 2011 and another dated March 11, 2011 wrote to John Kato, Rose Ngina, Patrick Wambua Nzomo and Thaddeus Mutuku Silingi informing them that the land they had purportedly purchased could only be sold by the administrators.

19. A restraining order was issued in Makueni ELC No 337 of 2017 ( formerly Nairobi ELC 910 of 2013) Alice Mbesa Keesi & 2 others vs Benjamin Mutua Keesi & 9 others against John Kato and Rose Ngina whether by themselves, their agents, servants, employees or whosoever from continuing to trespass onto, constructing, cultivating, selling, wasting or in any way dealing with Kikala/kaumoni/386 & Kikala/kaumoni/323 pending hearing and determination of the suit but despite service of the same John Kato has proceeded with constructing a house and an application for contempt is pending before the ELC Court.

20. He contended that Benjamin Keesi attended a family meeting on November 11, 2017 and consented to the substitution of their brother Samson Keesi’s name with that of their mother.

21. He contended that the properties had since acquired title deeds save for Kikala/kaumoni/422 whose new title number is Okia/kaumoni/422 and that although the District Land Adjudication and Settlement officer had confirmed the parcels belong to the deceased in letters dated June 6, 2006 and March 11, 2011,a recent search indicated that the 1st objector and Kyaatha Keesi had caused the property to be issued in their names as proprietors.

Determination 22. I have perused the Summons, the affidavits by the parties and the submissions hereto and noted from the record that a grant of letters of administration was issued on September 22, 2004 and confirmed on July 8, 2008. The grant was issued to Alice Mbesa Keesi, Justus Kyalo Keesi And Lilian Nthambi Keesi after the petition was advertised in the Kenya Gazette for 30 days. Thereafter, the grant was confirmed with the assets that comprised of the deceased vested in the Administrator, Alice Mbesa Keesi, widow of the deceased in trust for the beneficiaries of the deceased’s estate.

23. There was no objection since then 2008 until July 2, 2021 when the objectors herein filed an objection to the substitution of the Administrator Alice Mbesa Keesi who passed away on October 7, 2017 and Confirmation of grant through the proposed Administrators.

24. The Petitioner filed Petition for letters of administration and annexed the Chief’s letter of March 29, 2004 confirming the late Alice Mbesa Keesi as only wife/widow of the deceased and proposed Administrator. Attached was the death Certificate of the deceased and Marriage Certificate of the Deceased and the wife/widow Alice Mbesa Keesi and consents of the beneficiaries of the deceased’s estate that resulted in grant of letters of administration to the Administrators; Alice Mbesa Keesi, Justus Kyalo Keesi and Lilian Nthambi Keesi.

25. The letter of the Chief of Makueni dated June 19, 2020 also noted the family of the deceased comprised of 2 houses 1st wife Kalondu Keesi and 2nd House Alice Mbesa Keesi and the respective children.

26. The bone of contention seems to be that the Objector vide the Replying Affidavit filed on July 12, 2021 & November 18, 2021 reiterated that the Respondents are beneficiaries of the deceased’s estate from his 1st house and were irregularly and unlawfully left out of the succession proceedings earlier undertaken.

27. The Objector deposed that the deceased married Kalondu Keesi and lived with her at Maviani Village on Land Parcel Makueni/kaumoni/422. On the issue of establishing their paternity and to challenge the ‘iweto’ custom they denied that their mother was married by deceased’s mother to sire children, the Objector stated that only their father, the deceased could suggest DNA testing and not stepchildren. Their ID cards have the name of the deceased.

28. On the other hand the Applicants who sought revoke the grant and substitute the Administrator, Alice Mbesa Keesi who has since passed on with other Administrators and thereby a new grant is issued and confirmed with the new Administrators assert that their late father married only 1 wife as shown by the Marriage Certificate. They object to the objectors claim that they are beneficiaries of the deceased’s estate as they are step brothers and sisters to the deceased and not the deceased’s surviving spouse and children.

29. The matter before Court is to substitute the name of Administrator Alice Mbesa Keesi w/o deceased by revoking the grant and obtaining another grant.Section 81 of the Law of Succession Act provides that;Upon the death of one or more of several executors or administrators to whom a grant of representation has been made, all the powers and duties of the executors or administrators shall become vested in the survivors or survivor of them:Provided that, where there has been a grant of letters of administration which involve any continuing trust, a sole surviving administrator who is not a trust corporation shall have no power to do any act or thing in respect of such trust until the court has made a further grant to one or more persons jointly with him.

30. Section 76 of the same Act is a proviso on Revocation or annulment of grant, it provides thatA grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its own motion—(a)that the proceedings to obtain the grant were defective in substance;(b)that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;(c)that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;(d)that the person to whom the grant was made has failed, after due notice and without reasonable cause either—i.to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; orii.to proceed diligently with the administration of the estate;iii.to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of section 83 or has produced any such inventory or account which is false in any material particular; or(e)that the grant has become useless and inoperative through subsequent circumstances.

31. In the case of Re Estate of Mwangi Mugwe alias Elieza Ngware (deceased) [2003] eKLR, by Hon. Khamoni, J observed that:“…the operative word is “substitution”. The Law of Succession Act has no provisions talking about substitution of a deceased single administrator…In the circumstances therefore, it is my considered view that the proper provisions of the law to apply is section 76(e) of the Law of Succession Act and Rule 44 of the Probate and Administration Rules whereby the Applicant would apply for revocation or annulment of a grant on the ground “that the grant has become useless and inoperative through subsequent circumstances.” The Applicant would proceed to put a prayer in the same application that a new grant be made to him and could as well add a further prayer, if need be, for confirmation of the new grant. The application, should, of course, be supported by consent from adult beneficiaries in the estate of the first deceased person, the second deceased person being the deceased administrator.”

32. The Court of Appeal in Florence Okutu Nandwa & Another v John Atemba Kojwa, Kisumu Civil Appeal No 306 of 1998, stated that:“A grant of representation is made in personam. It is specific to the person appointed. It is not transferable to another person. It cannot therefore be transferred from one person to another. The issue of substitution of an administrator with another person should not arise. Where the holder of a grant dies, the grant made to him becomes useless and inoperative, and the grant exists for the purpose only of being revoked. Such grant is revocable under section 76 of the Law of Succession Act. Upon its revocation, a fresh application for grant should be made in the usual way, following procedures laid down in the Law of Succession Act and the Probate and Administration (Rules)…”

33. Lady Justice Angawa in Peris Wanjiku Nduati (deceased) Nairobi High Court Succession Cause No 2349/2001 held that:“where an administrator dies before completion of administration, the right course of action should be to seek his replacement through an application for grant of administration de bonis non”

34. I note that this is the direction that has been taken by the Petitioners in this matter and I find the Summons to be properly filed. The Petitioners proved that one of the Administrators, Alice Mbesa Keesi died on October 7, 2017 and the grant has been rendered in operative as she was holding the properties in trust for all the other Beneficiaries. I therefore revoke the grant issued on September 22, 2004 and confirmed on July 8, 2008 to Alice Mbesa Keesi, Justus Kyalo Keesi And Lilian Nthambi Keesi and order a new/fresh grant to be issued.

35. Since the contested issue of whether the Objectors are surviving spouse and children of the deceased is yet to be resolved due to competing and diverse submissions on the matter, until the issue is resolved for now, the Administrators are appointed as prescribed under Section 66 of LSA from surviving spouse(s) and children of the deceased. The new/fresh grant shall in the names of the proposed beneficiaries’ immediate family of the deceased.

36. Re Of The Estate Of Joshua Orwa Ojodehh – (deceased) [2014] eKLR, Hon Justice W Musyoka held;“…the law ensures that widows and orphans are given first priority in terms of access to the property of a dead husband and father. The other relatives, including parents, are relegated to a secondary position, and only access the property in the event that there is no widow or child, or if they convince the court in a proper application that they were dependent on their dead child or sibling or other relative and that the court should then make provision for them out of the estate of the dead child. These provisions are designed to obviate the possibility of widows and orphaned children being rendered destitute, as they would be if they are forced to share their inheritance with the parents and siblings of the deceased. Quite clearly therefore under succession law, parents are not in the same footing with widows and children...”

37. The Court shall await the Objectors to prove their claim as required by law, that their mother was married to the deceased, they are children of the deceased and hence beneficiaries of the deceased’s estate or that they are dependents of the deceased. This is not a task to be resolved by pleadings but by viva voce evidence; to test veracity of the evidence through cross-examination and credibility of the witnesses.

38. On the issue of intermeddling, Section 45 of The Law of Succession Act provides that:-“(1)Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.(2)Any person who contravenes the provisions of this section shall-(a)be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and(b)be answerable to the rightful executor or administrator to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration.

39. Section 109 of the Evidence Act, Cap 80 Laws of Kenya provides that;The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

40. In the case of Christopher Ndaru Kagina v Esther Mbandi Kagina & Another[2016] eKLR where the court stated that:“It is trite law that he who alleges fraud must prove fraud. Allegations of fraud must strictly be proved. Great care must be taken in pleading allegations of fraud or dishonesty. In particular, the pleader needs to be sure that there is sufficient evidence to justify the allegations. In the Case Central Bank of Kenya LTD -V- Trust Bank Ltd & 4 Others the Court of Appeal in considering standard of proof required where fraud is alleged state that fraud and conspiracy to defraud are very serious allegations. The onus of prima facie proof is much heavier on the person alleging than in an ordinary Civil Case. The burden of proof lies on the applicant in establishing the fraud that he alleges.

41. In Belmont Finance Corporation Ltd v Williams Furniture Ltd [1979] EWCA Civ J0525-6 Buckley L J said:“An allegation of dishonesty must be pleaded clearly and with particularity. That is laid down by the rules and it is a well-recognized rule of practice. This does not import that the word ‘fraud’ or the word ‘dishonesty’ must be necessarily used. The facts alleged may sufficiently demonstrate that dishonesty is allegedly involved, but where the facts are complicated this may not be very clear, and in such a case, it is incumbent upon the pleader to make it clear when dishonest is alleged. If he uses language which is equivocal, rendering it doubtful whether he is in fact relying on the alleged dishonesty of the transaction, this will be fatal; the allegations of its dishonest nature will not have been pleaded with sufficient clarity.”

42. R G Patel v Lalji Makanji [1957] EA 314 where the former Court of Appeal for East Africa stated thus:“Allegations of fraud must be strictly proved; although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required.”Vijay Morjaria v Nansingh Madhusingh Darbar & Another [2000] eKLR, where Tunoi, JA (as he then was) stated as follows:“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from facts.”Ndolo v Ndolo [2008] 1KLR (G &F) 742 wherein the Court stated that:“We start by saying that it was the Respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the Respondent was making serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; but the burden of proof on the Respondent was certainly not one beyond a reasonable doubt as in criminal cases…….” “……In cases where fraud is alleged, it is not enough to simply infer fraud from the facts.”

43. In Moses Parantai & Peris Wanjiku Mukuru suing as the legal representatives of the estate of Sospeter Mukuru Mbeere (deceased) v Stephen Njoroge Macharia [2020] eKLR, the Court of Appeal observed as follows:“In the instant case, the appellants needed to not only plead and particularize the fraud, but also lay a basis by way of credible evidence upon which the Court would make a finding that indeed there was fraud in the transaction leading to the transfer and registration of the suit land in the name of Janet all the way to the respondent……...”

44. The 1st Applicant has alleged that the Deceased had only one wife and has produced a marriage certificate to that effect. The Applicant has also produced documents that prima facie indicate transactions that took place between parties who were not beneficiaries with the Objectors and other third parties purporting to be owners of parcel of land that is this estate property without authority. The sale agreements or rather the land sales began in 2008 from the Affidavit of Patrick Mutua, 2012 for a Rose Ngina and 2009 to 2014 for Mutuku Silingi.

45. There are letters from the Ministry of Lands, District Land and Adjudication & Settlement office issuing warnings to any buyers and notifying them of the administrators of the estate.

46. I have perused the Replying affidavit and the only proof that the Objectors have provided that they are the children and or beneficiaries of the estate is a letter from the chief dated June 19, 2020 only.

47. There are allegations of intermeddling with the deceased estate and the Applicant has shed light on fraudulent transactions that have taken place since the grant was issued. Title deeds of Kilala/ Kaumoni/323, Kilala/ Kaumoni/365 & Kilala/ Kaumoni/386 have been presented to the court and there are sale agreements purporting to have the same properties as sold to third parties. The sellers are Kyama Keesi, Ignatius Kinyambu Keesi, and John Kato, persons whose names do not appear in the grant.

48. In the case ofGladys Nkirote M’itunga v Julius Majau M’itunga[2016] eKLR the court stated that;Whereas the law of succession does not define what intermeddling with the property of the deceased is, there is ample judicial decisions on acts which may amount to intermeddling. For instances, in the case of Benson Mutuma Muriungi v C e o Kenya Police Sacco & Another [2016] eKLR the court observed that:“Whereas there is no specific definition provided by the Act for the term intermeddling, it refers to any act or acts which are done by a person in relation to the free property of the deceased without the authority of any law or grant of representation to do so. The category of the offensive acts is not heretically closed but would certainly include taking possession, or occupation of, disposing of, exchanging, receiving, paying out, distributing, donating, charging or mortgaging, leasing out, interfering with lawful liens or charge or mortgage of the free property of the deceased in contravention of the Law of Succession Act. I should add that any act or acts which will dissipate or diminish or put at risk the free property of the deceased are also acts of intermeddling in law. I reckon that intermeddling with the free property of the deceased is a very serious criminal charge for which the person intermeddling may be convicted and sentenced to imprisonment or fine or both under section 45 of the Law of Succession Act. That is why the law has taken a very firm stance on intermeddling and has clothed the court with wide powers to deal with cases of intermeddling and may issue any appropriate order(s) of protection of the estate against any person.”

49. These are the specific acts that the Objectors have engaged in, acts that they have not denied. It would not be prudent in the circumstances to appoint them Co-administrators in the circumstances. The Objectors have also not proved that they are beneficiaries of the estate.

Dispositiona.That the grant issued on September 22, 2004 and confirmed on July 8, 2008 to Alice Mbesa Keesi, Justus Kyalo Keesi And Lilian Nthambi Keesi is hereby revoked.b.That Justus Kyalo Keesi, Lilian Nthambi Keesi and Samson Kyambo Keesi are appointed under Section 66 LSA as co-administrators of the estate of the late Jonathan Keesi Ngunzi.c.That a fresh grant of letters of Administration intestate of the estate of Jonathan Keesi Ngunzi be issued in the names of Justus Kyalo Keesi, Lilian Nthambi Keesi and Samson Kyambo Keesi.d.The Grant will be confirmed after 6 months from the date of issuance of this grant once parties file and serve the relevant application or Administrators file Summons for Confirmation of grant.e.The Objectors to first prove their claims; spouse and children of the deceased by sibling DNA Testing and/or viva voce evidence.f.Purchasers to pursue claim from ELC under Section 13 of ELC Act.

It is so ordered.

DELIVERED SIGNED & DATED IN OPEN COURT ON 12TH MAY 2022 IN MACHAKOS (VIRTUAL CONFERENCE).M W MUIGAIJUDGE