In re Estate of The Late Moses Kelly Marete (Deceased) [2018] KEHC 3693 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT KENYA AT MERU

SUCCESSION CAUSE NO. 567 OF 2015

IN THE MATTER OF THE ESTATE OF THE LATE MOSES KELLY MARETE  - DECEASED

TITUS KINOTI MARETE

LUCY MUTHONI MARETE......................................PETITIONERS

RULING

Grant of Letters of Administration to the estate of the deceased herein Moses Kelly Marete was made to Titus Kinoti Marete and Lucy Muthoni Marete on 16th February 2016.

There are 2 applications pending determination of this court. The application dated 14th June 2016  was filed by the deceased persons surviving widow under certificate of urgency seeking that she be allowed to enter L.R. No Nkuene/Uruku/1764 and pluck tea leaves growing therein and to continue plucking and selling to Imenti Tea Factory had vide the deceased person’s Tea Grower No. IN-640034 pending the hearing and determination of the succession cause.

She also sought that the OCS Kariene Police station provides her with security to strictly enforce the order issued by the court.  She also sought that Letters of Administration intestate granted to the petitioners on 5th January 2016 be annulled and revoked. The application was supported by grounds on the face of the application as well as affidavit of Grace Moses Marete sworn on 14th June 2016 in which she averred that the deceased left a will dated 18. 5.2015 prior to his death which was read to the beneficiaries on 27th July 2015 – GMM1.  She said L.R. Nkuene/Uruku/1764 had been sub divided resulting into new number as per mutations annexed – GMM2 & 3.  She produced slips for tea leaves she and deceased delivered at the factory.

She said proceeds of tea leaves was being used to pay a loan the deceased took from Yetu Sacco Ltd. She listed the deceased person’s liabilities at paragraph 7 –GmM1 5 and 6.  She said the shares at Yetu Sacco can be used to offset the loan the deceased had.  She said that none of the deceased person’s children live in Meru and she is in a better place to manage the tea leaves so it doesn’t go into waster.  She said Kelvin Boss Marete the deceased person’s grandson took 40 bags of fertilizer meant for the tea leaves from the factory. She said she was appointed Executrix in the deceased persons will and she has priority as widow to administer the estate.

In Replying Affidavit to the application the Respondents at paragraph 5 said they filed petition to the intestate estate of their father because the will read to them was not credible as it had alterations which was not counter signed.  They have however annexed copy of will which date is crossed from June to May 2015 and clearly countersigned by the advocate Kiautha Arithi who drew and attested to the will.

The Replying affidavit contests the validity of the will that the deceased is alleged to have left. I have through both applications dated 14th June 2016 and 5th September 2016 by the protester herein and the submissions by both the Protester/Applicant and the Respondents/administrators and the issue for determination is whether the petition for Letters of Administration interstate was properly filed before this court considering the Petitioners/Administrators beneficiaries were aware of the existence of a will that was read to them.

Was the petition the proper manner of challenging the will which they claimed was not credible?

Succession cause No. 45 of 2017 Kajiado Court – Nyakundi J

Succession cause No. 1141 of 2011 – Nyeri- Justice Mativo

I do find that the Petitioners herein ought to have cited their step mother to file the petition for to state Succession as appointed.  Administratrix to challenge the validity of the will as well as challenge the provisions made to them therein.

I do therefore find that Grant of Letters of Administration intestate made to them was done due to misrepresentation and the same is revoked. Being there is a will acknowledged by the Respondents herein; Grant of Probate is hereby made to the surviving widow of the deceased who is appointed executrix of estate pending further orders of the court.

RULING SIGNED, DELIVERED AND DATED 2ND DAY OF AUGUST 2018.

HON. A.ONG’INJO

JUDGE

In the presence of:

C/A: Penina

MS Njenga Advocate holding brief for Kiome for Petitioner.

Mr Ondari Advocate holding brief for Mwirigi Advocate for Protester.

HON. A.ONG’INJO

JUDGE