Serofina Chuma Kusimba v Kaleb Oronje Kusimb [2017] KEHC 2047 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

PROBATE & ADMINISTRATION CAUSE NO.17 OF 2009

RE:    THE ESTATE OF MAY AMOI KUSIMBA (DECEASED)

VERSUS

SEROFINA CHUMA KUSIMBA.......................................PETITIONER

AND

KALEB ORONJE KUSIMBA.............................................APPLICANT

RULING

1. The Case revolves around the estate of the late Mary A. Kusimba deceased who died on the 11th of February, 2008 being a resident of Mumias at the time of her death.  She was 60 years of age, did not leave behind a spouse or a child.

2. On the 9th of February, 2009 the deceased mother, Serofina Chuma Kusimba petitioned for grant of letters of administration as the sole survivor of the deceased estate.

3. As fate would have it Serofina Chuma Kusimba also died on the 2nd of December, 2009 before her application for confirmation of grant dated  23rd of November, 2009 was heard.  She had sought to have the only asset of the estate Apartment No. PTS/HAZ/B27/FB/94 be transferred to her.

4. By an application dated 18th December 2015 one Kaleb Oronje Kusimba a brother to the deceased and the Objector herein applied to be substituted in place of their deceased mother as an administrator, having obtained a grant ad litem to the Estate of the said Serofina Chumba Kusimba. Indeed a consent letter dated 25th September, 2015 was signed his siblings including the Objector consenting to his appointment as the administrator.  The said application was filed by Marisio Luchivya & Company Advocates who are no longer on record for the said Applicant.  The application was never prosecuted.

5. On the 18th of May, 2016 the applicant Kaleb Oronje Kusimba filed in person an application similar to the one dated 18th December, 2015, the said application is equally pending.

6. Ombiro & Company Advocates came on record on 26th of May, 2015 and by an application dated 22nd September, 2016 yet again sought to have Kaleb Oronje Kusimba substituted in place of his mother now (deceased)  and for the temporary grant issued to the Petitioner Serofina Chuma Kusimba confirmed in favour of the applicant.

7. On her part the Objector Emily Kusimba filed an objection to making of a grant in the Estate of the deceased herein Mary Amoi Kusimba as petitioned by Serofina Choma Kusimba.

8. Before delving into the merit and demerits of the application and the objection, I will sue moto dismiss the applicant’s applications dated 18th December, 2005 and 18th May, 2016 as the same are similar to the one dated 22nd September, 2016, so that a determination can be made on only one of them.

9. In his application of 22nd September 2016 the applicant seeks to be substituted and the grant confirmed in his favour.

On the other hand the Objector objects to making of a grant all together Counsel for the parties have dealt with the same as if the objection to the making of the grant responds to the application.  I will in the circumstances consider both in this ruling.

10. The application dated 22nd September, 2016 seeks  4 prayers as follows;

- Substitution of the Petitioner now deceased with Kaleb Oronje Kusimba.

- Substitution of the Law firm of Luchivya & Company Advocates to M/s Ombito & Company Advocates.

- Confirmation grant in favour of the applicant &

-Costs.

11. The application is based on grounds that the deceased family had agreed to have the applicant substituted as the administrator and secondly the estate is under threat.

12. After the objection was filed the Applicant responded to the same through an affidavit dated 2nd March, 2017 where he gives a list of 7 beneficiaries to the Estate including himself and the Objector, stating that the family had agreed that the only property being part of the Estate goes to their mother and after the demise of their mother the family including the Objector agreed that the applicant takes care of the property as he was based in Nairobi and was involved with the repayment of the mortgage after the demise of the deceased.

13. In the objection the Objector contends that the ‘only Asset’ of the deceased; apartment B 27 F8 Hazina Estate ought not to be included in the list of assets for distribution, as she was gifted the said property inter vivos.  She also gave an account of how she had taken care of the deceased single handedly and met her medical needs.  Further that she initially had no issue with the property going to her late mother as she was then not aware that the deceased had named her as the next of kin in her application in acquiring the property.

14. The objection to making of a grant was filed rather late in the day.  7 years to be precise as the grant was issued to the deceased Serofina Chuma Kusimba after the relevant period of gazetting.

Secondly in my view it matters not at this stage who administers and more so, since the Objector gave consent to the appointment of the applicant as an administrator, unless there is an allegation of mismanagement.  The Objector should be more concerned with distribution indeed her grounds are more a kin to an objection towards distribution.

For the reasons above mentioned the objection cannot be sustained and it is dismissed.

15. Next is to consider the application for substitution and whether or not to confirm the grant by giving the entire estate to the applicant.  There is a consent by all including the Objector to substitute the name of their deceased mother with that of the applicant, although the Objector appears to have had a change of mind.

In the interest of moving this matter forward and in the interest of preserving the deceased Estate, I will substitute their deceased mother and appoint the applicant as the administrators of the Estate of Mary Kusimba (deceased).

16. At this juncture I will not confirm the grant especially in light of the issues raised by the Objector I will consider the Objector’s Affidavit and further affidavit as objection to the distribution of the entire Estate to the applicant as proposed and invite other beneficiaries to file their views in terms of the distribution.

17. I will not make any order as to costs for now.

DATED and DELIVERED at BUNGOMA this  5th  day of  October,  2017

ALI-ARONI

JUDGE