Nuni General Trading Company Limited v Chege & 29 others; Ndolo (Interested Party) ((The administrators of the Estate of the Late David Mwau Ndolo) [2022] KEBPRT 668 (KLR)

Nuni General Trading Company Limited v Chege & 29 others; Ndolo (Interested Party) ((The administrators of the Estate of the Late David Mwau Ndolo) (Tribunal Case 554 of 2020) [2022] KEBPRT 668 (KLR) (Civ) (19 August 2022) (Ruling)

Neutral citation: [2022] KEBPRT 668 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Civil

Tribunal Case 554 of 2020

Gakuhi Chege, Vice Chair

August 19, 2022

Between

Nuni General Trading Company Limited

Applicant

and

Leonard Chege & 29 others

Respondent

and

Joseph Ngui Mwau Ndolo

Interested Party

(The administrators of the Estate of the Late David Mwau Ndolo

Ruling

1. Before me is an application dated 16th June 2022 in which Joseph Mwau Ndolo (administrator of the estate of the late David Mwau Ndolo) seeks that the rent deposited with the Tribunal be released to the account of Teresia Kindile Mwau Ndolo held at Kenya Commercial Bank, Masii Branch being Account No. xxxx.

2. The application is predicated upon the certificate of confirmation of grant issued on 18th November 2022 marked annexure ‘JMN2’ issued in Machakos H.C Succession Cause no. 32 of 2019 in which plot no. 36/11/33, Nairobi was given to the 1st household of the late David Mwau Ndolo & Lumumba Mwau Ndolo to hold in trust for the other beneficiaries of the said house.

3. The amount deposited with this Tribunal was paid in respect of the rental income arising from the said plot pursuant to the orders made on 15th July 2020 in this matter.

4. By a ruling delivered in this matter on 2nd September 2021, I made a finding at paragraph 32 (V) as follows:-“According to the certificate of confirmation of grant issued on 18th November 2020, the suit property was distributed to Joseph N.M. Ndolo and Lumumba Mwau Ndolo to hold in trust for the beneficiaries of the 1st household”.

5. Although this Tribunal had on 6th July 2021 directed the parties to come up with a sharing formula of the rent deposit held by the Tribunal to enable release to the beneficiaries directly without doing it through the joint account, it is clear from the foregoing that he said order was made ‘per incurium as the issue had already been settled by the superior court in Machakos H.C Succession Cause No. 32 of 2019 and this Tribunal’s ruling of 2nd September 2021.

6. I note that the applicant one Joseph Mwau Ndolo is an administrator of the Estate of David Mwau Ndolo (Deceased) and one of the trustees of the 1st household as per the certificate of confirmation of grant issued by the probate court. In the circumstances, the persons who are entitled to the money deposited in this Tribunal are the beneficiaries of the 1st household.

7. I have noted the contents of the affidavits of Lumumba Mwau Ndolo and Joseph Mwau Ndolo sworn on 4th August 2022 and 15th August 2022 and note that the issues raised in the affidavit of Joseph Mwau Ndolo cannot be determined in this matter and ought to have been raised at the point of issuance of confirmation of grant by the superior court.

8. The certificate of confirmation of grant does not provide that the rental income or the properties assigned to the 1st household of the deceased belong to Teresia Kindile Mwau as the 1st widow of the deceased. The grant only states that the properties would be held by the named administrators in trust for the beneficiaries of the 1st household. None of the beneficiaries has been assigned any superior rights over the properties including the widow. The latter is however being given double of her entitlement.

9. In the circumstances, I agree with the contents of the affidavit of Lumumba Mwau Ndolo that the money deposited with the Tribunal ought to be shared out equally amount the beneficiaries of the 1st household subject to the widow getting 20% thereof as suggested by him.

10. I have seen the list of 6 beneficiaries provided by the said Lumumba Mwau Ndolo together with their account details and since the same has not been disputed by the applicant, I shall adopt it with a rider that the remaining two (2) beneficiaries shall provide their account details to the Tribunal’s cash office for processing of their payments out of the Tribunal’s account.

11. In the circumstances, I proceed to make the following orders in respect of the application dated 16th June 2022:-i.The rent deposit held by the Tribunal in respect of the suit premises shall be released to beneficiaries of the 1st household of the late David Mwau Ndolo (deceased) in the following propositions and accounts:-a.Teresia Kindile Mwau Ndolo – Twenty per cent (20%) of the total amount held through KCB Account no. xxxx Masii Branch.b.Lumumba Mwau Ndolo – Ten per cent (10%) of the total amount held through Equity Bank (k) Ltd Account No. xxxx Machakos Branch.c.Patrick Lumumba – Ten per cent (10%) of the total amount held through KCB Account no. xxxx, Kikuyu Branch.d.Pauline Muthini – Ten per cent (10%) of the total amount held through Family bank Ltd Account no.xxxx, City Hall Way Branch.e.Boniface Kituku Mwau- Ten per cent (10%) of the total amount held through Post Bank Account no. xxxx, Uthiru Branch.f.Bernard Mwau- Ten per cent (10%) of the total amount held through Family Bank Ltd Account no. xxxx Machakos Branch.g.Jonesmus Kyalo Paul -Ten (10%) of the total amount held through Kenya Commercial Bank Ltd Account no.xxxx, Masii Branch.h.The remaining two (2) beneficiaries to provide their account details with each being entitled to Ten per cent (10%) of the total amount held by the Tribunal on account of the estate.ii.The costs of the application shall be in the cause.It is so ordered.

RULING DATED, SIGNED & DELIVERED VIRTUALLY THIS 19TH DAY OF AUGUST 2022. HON. GAKUHI CHEGEVICE CHAIRBUSINESS PREMISES RENT TRIBUNALIn the presence of:-Miss Ameba for the interested party.Miss Kwamboka for the Administrator of the 1st house.