Rosemary Nduta & Jane Nyambura v John Kimani Kioi, Stephen Nyamu Kioi Jacinta Kabui Kioi Moses Mungai Kioi & Irene Njeri [2016] KEHC 7488 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

FAMILY DIVISION

SUCCESSION CAUSE NO.1999 OF 1999

IN THE MATTER OF THE ESTATE OF BONIFACE KIOI MUGEKA (DECEASED)

ROSEMARY NDUTA............................................1ST APPLICANT

JANE NYAMBURA............................................2ND APPLICANT

VERSUS

JOHN KIMANI KIOI.......................................1ST RESPONDENT

STEPHEN NYAMU KIOI..............................2ND RESPONDENT

JACINTA KABUI KIOI...................................3RD RESPONDENT

MOSES MUNGAI KIOI..................................4TH RESPONDENT

IRENE NJERI.................................................5TH RESPONDENT

RULING

Boniface Kioi Mugeka died intestate on 16th April 1992.  He was survived by seven adult children, the applicants and the respondents herein. On 29th October 1999 Moses Mungai Kioi (4th respondent) and Rosemary Nduta (1st applicant), with the consent of their siblings, petitioned this court for grant of letters of administration intestate.  The same was issued to them on 30th December 1999 and subsequently confirmed on 8th December 2000.

On 9th January 2008 the applicants together with the 5th respondent filed summons seeking the revocation/annulment of the grant issued herein on the grounds that the grant was obtained fraudulently by making false statement and by concealment from the court facts material to the cause. In the affidavit sworn in support of the summons for revocation, the 1st applicant averred that she was not involved in the application for confirmation of the grant and yet she was a co-administrator.  She stated that her co-administrator had obtained the confirmed grant fraudulently by forging her signature and those of other beneficiaries.  She sought the revocation of the grant and a re-distribution of the estate of the deceased.  The summons is yet to be heard.

The applicants filed the present application dated 15th August 2013 seeking orders directing the beneficiaries of the estate of the deceased to desist from intermeddling with the properties of the estate; and the beneficiaries to account to the administrators the extent of the assets which they have intermeddled with.  They further sought orders directing that the rental income from certain properties forming the estate of the decease be deposited with their advocates to be utilized as legal fees and for better accountability to avoid wastage and misuse.  The application was premised on grounds that some of the beneficiaries had subjected the estate of the deceased to imminent waste and misuse.

The application was opposed by the 4th respondent through his replying affidavit dated 12th February 2015. He vehemently denied the allegations of forgery stating that the first applicant was at all times involved in the succession proceedings as a co-administrator.  He stated that the estate was distributed among the beneficiaries through consensus and that any subsequent sale of the said properties by any of the beneficiaries was in order as the properties having been distributed as per the certificate of confirmation of grant issued on 8th December 2000, the beneficiaries were free to deal with the same as they wished.

The law on intermeddling is found in section 45 of the Law of Succession Act (Cap. 160) which states that;

“(1) Except so far as expressly authorised 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.”

Intermeddling is defined in the case of GITAU & 2 OTHERS -V- WANDAI & 5 OTHERS (1989) KLR 231 as;

“Any act done concerning the estate of the deceased by a person who has not obtained representation amounts to intermeddling with the estate.”

The grant was confirmed on 8th December 2000 with each beneficiary getting a share of the estate properties.  It is this confirmation that is challenged by the applicants’ summons for revocation that is yet to be heard and determined. As it is, the grant challenged is yet to be revoked.  Thus, any dealings with the properties by the beneficiaries is lawful as the said properties were transferred to them by a lawful grant yet to be revoked by a court.  The beneficiaries cannot be said to be intermeddling in the estate properties if they are dealing with properties rightfully conferred to them by a grant which is still in operation until revoked.  Furthermore, the Law of Succession Actatsection 83 (g)and(h) provides that the production of estate accounts is one of the duties of personal representatives.  There is no provision for beneficiaries of an estate to produce any accounts of their dealings with property they have inherited through a grant.  Accordingly, the application fails and is dismissed.  This is a family dispute.  I make no order as to costs.

DATED and SIGNEDatNAIROBIthis25THday ofFEBRUARY 2016.

A.O. MUCHELULE

JUDGE

DELIVEREDatNAIROBIon the29THday ofFEBRUARY 2016.

W. MUSYOKA

JUDGE