Nyamu & another v Nyamu [2022] KEHC 15923 (KLR)

Nyamu & another v Nyamu (Succession Cause 2 of 2021) [2022] KEHC 15923 (KLR) (17 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15923 (KLR)

Republic of Kenya

In the High Court at Meru

Succession Cause 2 of 2021

EM Muriithi, J

November 17, 2022

Between

Sadia Nyamu

1st Applicant

James Mugambi Kaberia

2nd Applicant

and

Secondinah Kanini Nyamu

Respondent

Ruling

1. By summons dated May 24, 2022 the administrators seek specific orders as follows:-1. That this application be certified and be heardex parte in the first instance.2. That pending the hearing and determination of the confirmation of grant herein this hon court be pleased to restrain the respondent from collecting and applying rents from the deceased’s estate.3. That the respondent be ordered to immediately render account for all monies collected as rent from the following properties and estimated as follows:-a.Developed Plot No 107 Umoja Innercore Sec V comprising of 12 flats and each yielding rent of Kshs 14,000 pm, and 2 shops yielding Kshs 25,000/= pm each, approx 3,192,000 to-date.b.Fully developed property in Mikinduri market with one shop and 6 rooms, approx 210,000/= to-date.c.Property in Kaguata, Tigania and other parts of Meru, estimated collectible rent in the hundreds of thousands, to-date.4. That all income from the property of the deceased be deposited in the deceased’s account at ABSA bank, account numbers xxxx and xxxx, in Nairobi, pending further directions/orders of this hon court

2. In support of the application of 1st administrator’s affidavit asserts at paragraph 8 “ That in the meantime, the respondent has continued to collect and apply rents from the estate of the deceased as if the same were her own property.”

3. The objector did not reply to the application dated May 24, 2022 but in her application dated June 7, 2022, the supporting affidavit confirms rental income for an asset of estate (at paragraph 14 thereof) as follows:-“I was managing premises known as Caterina house, Umoja Estae plot No A xxx I use the proceeds thereof to cater for school fees and maintenance of the deceased’s said children. I also use the same to renovate the premises. This property was given to me jointly with Elias Mwingirwa Nyamu.”

4. Both parties agree that the court (Otieno J) had by directions of December 15, 2021 set the matter for hearing by oral evidence, and that pursuant to those directions the matter had been fixed on May 10, 2022, before the court transferred, and subsequently on October 12, 2022. The matter has not proceeded to hearing yet.

5. From affidavits on record sworn by both parties, there appears to be contestation as to the rights of the administrators, the applicants in application dated May 24, 2022, and the objector (applicant in application dated June 7, 2022) to inherit the deceased. The objector asserts an oral will by the deceased granting the estate assets to herself and one Elias Mwingirwa Nyamu, who is shown to be son of the deceased with the 1st administrator. The objector claims as a daughter to be entitled in priority to the 1st and 2nd administrators whom she says have no right to inheritance as they are, respectively, not a widow and a dependants of the deceased.

6. On her part the 1st administrator asserts her customary marriage with the deceased and alleges that the objector is not a daughter but a niece of the deceased with, therefore, an inferior priority in terms of section 66 of the Law of Succession Act, and together with her sister as adults now who are married with their own families are “by no means dependants of my deceased husband at the time of his death.”

7. In these circumstances, only the hearing of the objection shall determine the respective rights of the administrators and the objector to inherit the deceased based on the alleged oral will or by intestate succession as heirs and or dependants, in addition to the issue of the person or persons suitable to be appointed as administrators in terms of the degrees of consanguinity under section 66 of the Law of Succession Act.

8. This court shall therefore proceed with the hearing of the objection upon the directions already pending given by Otieno, J on December 15, 2021.

9. In the meantime, the court considers that an order for deposit of rental income in an estate account held by the deceased would deprive the children of the deceased maintenance and school fees, and or otherwise be wasted, if the money is taken out therefrom by the administrators who have access to the accounts by virtue of the letters of administration, in the same way as presently feared of the respondents. The remedy for the situation appears to be in the establishment of a neutral account for the holding of such funds subject to an order for provision of school fees and related maintenance for the children of the deceased, with leave of court from time to time as necessary. The matter should also be expedited hearing and determination of the rights of the parties.

10. Of course, if any of the parties who has occupied an asset of the Estate and or received rents in the past for such estate assets, they shall, by a suitable order for account be required to repay to the Estate; or if he/she is entitled to a share of the estate, what she has taken shall in terms of section 42 of the act be taken into account during distribution of the estate.

11. Before the hearing and determination of the question of the capacity of the parties as administrators and or heirs is determined, the status quo shall be maintained to the effect that the administrators and the objector will maintain possession of estate asserts and declare such rents as accrue for deposit into a joint account in the names of counsel for the parties, subject to an order for account upon judgment on the objection and or distribution of the estate, as the court may direct after hearing the evidence.

Orders 12. Accordingly, from the reasons set out above, the court makes the following orders:1. The prayers for account and payment of rental income into the estate account, which is accessible to the administrators by virtue of their letters of administration is declined at this stage.2. The court directs that the petition proceeds for hearing of the objection to the grant by the application for revocation of grant dated January 12, 2021. 3.In the meantime, in the interests of preservation of the estate funds in an neutral account, all the rental income accruing from the estate of the deceased shall be deposited into a joint account to be opened in the names of the counsel for the parties within seven (7) of this ruling. Liberty to apply.4. The withdrawal of such sums as are necessary for the school and related maintenance of the children of the deceased shall be made with approval of the court from time to time, as necessary.5. Costs in the cause.

DATED AND DELIVERED THIS 17TH DAY OF NOVEMBER, 2022. EDWARD M. MURIITHIJUDGEAPPEARANCES:Mr. Musyoki Advocate for the Applicants.Mr. Ongeri Advocate for the objector.