Loitarem v Loitarem & another [2022] KEHC 11933 (KLR)

Loitarem v Loitarem & another (Probate & Administration 15 of 1985) [2022] KEHC 11933 (KLR) (19 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11933 (KLR)

Republic of Kenya

In the High Court at Eldoret

Probate & Administration 15 of 1985

RN Nyakundi, J

May 19, 2022

IN THE MATTER OF THE ESTATE OF KIPTOO CHEBOI

Between

Keeme Loitarem

Applicant

and

Anne Loitarem

1st Objector

Simon Kirui Cheboi

2nd Objector

Ruling

1. What is before this court is an application dated 31st January 2022 premised to be brought under section 45 as read with section 47, Section 83 of the Law of Succession Act and Rules 49 and 73 of the Probate and Administration Rules and section 3A of the Civil Procedure Act. The applicant seeks the following orders;a.Spentb.The Honourable court be pleased to issue an order of injunction restraining the respondent from transferring, interfering in any manner alienating the estate pending the hearing of the main suit.c.The orders issued herein be served upon the ocs Kapenguria Police station to ensure compliance and maintain peace.d.The Honourable court be pleased to issue an injunction restraining the respondent from interfering with the estate pending the hearing of the suit.e.The Honourable court be pleased to issue an order that the respondent render a full and accurate account of all the dealings of the estate from the date of appointment as the administrator to date and any funds received from illegal sale of parts of the estate be deposited in court for appropriate distribution to the beneficiaries according to law.f.The Honourable court be pleased to issue an order to cite the respondent/administrator for intermeddling with the estate and the court to sanction him according to section 45 of the Law of Succession Act.g.The Honourable court be pleased to issue an order to remove the respondent/administrator and substitute him with a proposed administrator to be brought into court by the consent of all beneficiaries who administer the estate according to law.h.Costs be in the cause

2. The application is based on the grounds therein and the averments in the affidavit in support of the application.

3. It is the applicant’s case that part of the estate of the deceased has been wasted as the respondent has entered into sale agreements and sold part of the estate. she cited Giella vs Cassman Brown & Co. Ltd (1973) E.A 358 on the principles of injunction. She submitted that if an injunction is not granted there will be irreparable loss and relied on the case of Ann Wairimu Wachira v Jerioth Wangui Maina and 2 others (2016) eKLR.

4. The applicant cited section 83 of the Law of Succession of Act and submitted that the respondent has forged the original titles of some of the properties of the estate to facilitate illegal sales. Further, that the respondent has intermeddled in the estate of the deceased and ought to be held accountable by the court by making him provide accounts. She relied on the case of Re Estate of Geoffrey Mwangi Chege (Deceased)Succession Cause No. 905 of 2015.

5. She cited section 45 of the Law of Succession Act and submitted that the estate is in danger of it being wasted. Further, that the administrator is committing an illegality as the administrator to the estate of the deceased since he has not obtained authority of this Honourable court to alienate and sell parts of the estate of the deceased. She relied on the cases of Ben Mutuma Muriungi vs CEO Kenya Police SACCO & Another(2016) eKLR, In Re Estate of M’Ngarithi M’Miriti(2017) eKLR and submitted that the respondent’s actions amount to intermeddling with the estate of the deceased.

6. On revocation, she cited section 76 of the Law of Succession Act and submitted that she has clearly shown that the actions of the respondent have not been in tandem with the interest of the beneficiaries of the estate. the administrator having not proceeded diligently with the administration of the estate, it is just for the court to revoke the grant issued to the petitioner.There is no response on record for the respondents.

7. Upon perusal of the pleadings and submissions, I find that the issues for determination are;a.Whether the orders for injunction should issueb.Whether the respondent should be cited for intermeddlingc.Whether the petitioner should be removed as the administrator

8. It is trite law that for an injunction to be issued, the applicant must satisfy the three requirements settled in Giella v Cassman Brown [1973] EA 348 where the court held that an applicant must demonstrate that they have a prima facie case with a probability of success, demonstrate irreparable injury which cannot be compensated by an award of damages if a temporary injunction is not granted, and if the court is in doubt show that the balance of convenience is in their favour.

9. Before embarking on the determination of the prayer for injunction, it is paramount that certain facts be noted. The grant of letters of administration were issued on 17th January 1986. The certificate of confirmation of grant was issued in the year 2015. The court issued a temporary injunction on the estate, specifically with regards to West Pokot/Siyoi/104.

10. In order to issue an order for injunction the court needs to be certain as to what comprises the estate. moreso considering the age of the matter, the court shall need to establish whether the subject matter of the succession cause exists. As at 4th April 2016, it had been agreed that there would be an official search certificate annexed to an affidavit and filed in court.

11. From the bundle of documents attached to the affidavit in support of the application, there is a certificate of official search at page 35 which shows that the property is in the name of the administrator and there is a caution on the said property. I do note that the applicant just attached the documents to the affidavit instead of annexing them thus bringing into question whether they have been produced in the proper manner before the court to enable them be considered evidence. That notwithstanding, the same indicates that the property was not distributed.

12. However, the applicant also claims that the administrator failed to go after other properties that belonged to the estate of the deceased. she does not mention which properties these are and claims they are within the knowledge of the administrator. I find that to be a fishing expedition as it is trite law that he who alleges must prove.

13. Given that there is a dispute as to the actual estate, I find that it would be moot to issue an injunction over an estate whose extent is unknown. I am therefore reluctant to grant the orders of injunction at this juncture.

14Section 83(e) of the Law of Succession Act provides;Within six months from the date of the grant, to produce to the court a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings therewith up to the date of the account;

15. I find that the appropriate orders to be issued at the moment would be to have the appointed administrator produce a full inventory of the assets to the court before any further action can be taken.

16. On the issue of intermeddling, section 45 of the Law of Succession act provides;(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.

17. It is undisputed that the respondent was appointed the administrator of the estate. The administrator cannot have intermeddled in the estate as he had the authority to deal with the property. Further, the applicant has merely stated that there was intermeddling and that there was forging of titles by the respondent. She has not provided actual proof of said intermeddling. Further, I reiterate that she has not introduced the documents alleged to be the evidence of alleged intermeddling in the proper manner by merely having them produced as a bundle of documents and not annexed as evidence. This is not merely a technicality but also goes to the substance of the contents of the documents as they are alleged to have evidentiary value.

18. In the premises, I find that the only suitable orders at this juncture are that the administrator render a full account of the inventory and dealings of the estate of the deceased from the time of appointment to date. It is so ordered.

DATED, SIGNED AND DELIVERED AT ELDORET VIA EMAIL THIS 19TH DAY OF MAY 2022. R. NYAKUNDIJUDGE