M N M v G M M [2017] KEHC 9708 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

FAMILY DIVISION

SUCCESSION CAUSE NO. 97 OF 2017

IN THE MATTER OF D M G

M N M……APPLICANT /ADMINISTRATIX

VERSUS

G M M………………………...RESPONDENT

RULING

1. The deceased DMG died intestate on 5th July 2016 at Tigoni.  He was survived by a widow MNM (the applicant) and KKM (a son).  On 25th January 2017 the applicant petitioned this court for the grant of letters of administration intestate.  The grant was issued to her on 20th March 2017, and confirmed on 20th June 2017.  The properties in the estate were land parcel KJD/Kaputiei North[particulars withheld] measuring about 0. 0863Ha and money in A/c No.[particulars withheld] at Equity Bank, Tom Mboya  Branch.  The two beneficiaries were to share the estate equally.

2. On 1st September 2017 the deceased’s father GGM (the respondent) applied to have the grant revoked and/or annulled.  His case was that he and the deceased’s mother MWG were dependants who had not been provided for, and who had not been made aware of the petition leading to the grant.  They stated that the applicant had, before the deceased’s death, filed a petition to divorce him; and that soon after the deceased was served with the petition he was murdered.  The applicant disappeared following the death, and did not even attend the burial.  Their contention was that the applicant was no longer the wife of the deceased, and therefore could not benefit from the estate.  That application is awaiting hearing.

3. On 19th September 2017 the applicant filed the present application seeking that the respondent be committed to civil jail for intermeddling with the deceased’s property; be ordered to provide account of his dealings with the estate; be restrained from the management and control of the property KJD/Kaputiei North/[particulars withheld], or collecting rent therefrom.  It appears that the deceased had 500 shares in [particulars withheld]  Construction Company.  She sought that the respondent be restrained from selling or charging the shares.

4. The response by the respondent was that since the applicant did not attend the deceased’s burial she had ceased to be his wife and therefore had no claim to the estate; that the money paid by the tenants of KJD/Kaputiei North/[particulars withheld] was being used to repay a loan the deceased had at Equity Bank, Tom Mboya Branch.

5. Mr. Kakunga for the applicant and Ms Nakhungu for the respondent argued the application before me. I have considered their submissions.

6. It is basic that once the applicant obtained letters of administration over the estate of the deceased, all the property in the estate was placed under her charge.  Under sections 79and83 of the Law of Succession Act (Cap 160) she was to get all the free property of the deceased, including all debts owing to him and moneys payable to his estate by reason of his death.  It became her responsibility to ascertain and pay, out of the deceased’s estate, all his debts.

7. It follows that the tenants on KJD/Kaputiei North/[particulars withheld] were, following the appointment, supposed to pay all due rent to the applicant; and that the applicant was the one to repay whatever loan that was owed to Equity Bank.

8. To the extent that the respondent had no letters of administration over the estate of the deceased, his dealing with the estate by collecting rent or applying the same in whatever manner amounted to intermeddling with the estate.  He can be prosecuted for this.

9. This being the case, I allow the application dated 17th September 2017 and order the respondent to, within 30 days from today, render a true and accurate account of his dealing with the estate of the deceased, including  accounting for all monies received as rent and the payments made in respect thereof.  Further, I make an order restraining him, and his agents, from further receiving or collecting rent due to the estate until this cause is heard and determined.  Lastly, the management and control of the property KJD/Kaputiei North/[particulars withheld], including the collection of rent from tenants thereon, shall  be the business of the applicant.

10. Cost of the application shall be borne by the respondent.

DATED and SIGNED at NAIROBI this 7TH day of NOVEMBER 2017

A.O. MUCHELULE

JUDGE

DATED and DELIVERED at NAIROBI this 9TH day of NOVEMBER 2017

R.E. OUGO

JUDGE