Victoria Mamu Kiio & Leonard Ndeto Mututo v Titus Mumo Mututo [2014] KEHC 6359 (KLR)

193/2014

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

SUCCESSION  CAUSE NO. 4 OF 2010

IN THE MATTER OF THE ESTATE OFLEONARD NDETO MUTUTO

VICTORIA MAMU KIIO...........................................1ST APPLICANT

LEONARD NDETO MUTUTO................................2ND APPLICANT

VERSUS

TITUS MUMO MUTUTO.......................OBJECTOR/RESPONDENT

RULING

By an application dated 16th August, 2011, the Applicant/Petitioner seeks this court’s orders as follows.

Thatthe objector Titus Mumo Mututo be restrained from collecting any rent, from the tenants in plot number R 341/Kaango Estate, Kitui Municipal, and/or pledging, or in any other manner whatsoever obtaining any benefits to himself arising from and/or pertaining earnings and/or income generated from the Plot No. R341/Kaango Estate until final disposal of this petition.

Thatthe objector Titus Mumo Mututo do render a true and accurate account to the  court on all monies received by him as rent, dues and/or other manner of income from the Plot Number R341, Kaango Estate in Kitui Municipality from 24/12/2009.

Thatthe answer to petition of grant as well as the petition by way of cross petition for grant, filed by the objector be struck out.

The application is supported by an affidavit deposed by the 1st Petitioner in which she states that having been married by the deceased under Kamba Customary Law their marriage was eventually solemnized under the Marriage Act.  At the time of the deceased’s death they had been blessed with one child, the 2nd Petitioner herein.  Other than their income from gainful employment, they also relied on rent collected from the asset left by the deceased Plot Number R341 Kaango Estate, (in Kitui Municipality (suit premises).In 1989 the deceased suffered from mental illness.  She (applicant) resigned from her job as a teacher to undertake administrative duties in the deceased’s law firm.  In 1995he was overwhelmed.  The law firm closed down.  They moved toKitui where they solely relied on income from the suit premises.

In 1998the petitioner moved to Kisumu having secured employment to supplement their income.  They agreed that the objector looks after the deceased.  Proceeds from the suit premises were for purposes of maintaining him.   Upon the deceased’s death the objector/respondent continued to collect rent from the suit premises that he has never accounted for.  Consequently the objector is intermeddling with the Estate of the deceased and is converting it to his own use.  The deceased’s estate is therefore in danger of being wasted and alienated.

In a response thereto the objector stated that the deceased separated from the 1st Petitioner when he fell ill in 1995 as the 1st petitioner deserted him.  The deceased therefore lived and operated the suit premises as an office where he kept his files.  He denied an allegation that the suit premises have been leased to any tenant.  Further he stated that he incurred expenses on the deceased’s medical expenses, land rent and rates awaiting disposal of the files stored in the house and its renovation into a habitable status so that it could be leased  out.  In 2006the deceased’s mental status having improved, he donated to him a Power of Attorney to manage his properties.  He argued that there is no basis of striking out the answer to the petition and cross-petition.

The applicants/petitioners herein applied for Letters of Administration Intestate.   An objection to making of the grant was filed by the objector who also made a petition by way of cross petition for a grant.

It is trite law that nobody ought to interfere with any free property of a deceased person.  The law criminalizes such an act (See Section 45 of the Law of Succession Act).  To deal with such property a person must obtain authority from the court in a form of Letters of Administration in a scenario where a person dies intestate like in the instant case.

It had been stated that the objector herein has been collecting rent from tenants who reside in the suit premises.   The objector denies that there are tenants at the suit premises and intimates instead that the deceased lived in one room while the other room was used as a store for the deceased’s files.

The duty was upon the applicant to establish that indeed the suit premises was in occupation and rent from the tenants was being collected by the objector.  Other than allegation, no evidence was produced to prove the same.   However, parties herein being in agreement that the suit premises belong to the deceased, it is an asset forming the estate of the deceased.  Consequently, nobody is allowed to interfere with it.

The objector herein has expressed intention to renovate the premises to make it habitable in order to lease it out purportedly to have it generate an income for purposes of paying off expenses incurred.  He also believes that he is the right person to administer the estate of the deceased. Having been given a Power of Attorney prior to the deceased’s demise.  The Power of Attorney granted to him expired at the time of passing on of the deceased.  Therefore it would not be used as an excuse to be an administrator of the Estate of the deceased.  The objector claims he is also a dependant of the deceased. The extent of dependency must be established.

The objector herein having filed an answer to the petition and a cross petition within the time he was given by the court, the court must determine the dispute.    Calling upon the court to strike out the answer to the petition and cross petition as submitted would not be just. In determining such a matter the court would be concerned in ensuring substantial justice is done.  This would mean that a matter cannot be wished away on simple technicalities.

Prior to the court exercising its discretion identifying whom to issue to a grant of Letters of Administration Intestate, it must determine any dispute arising first.

From the foregoing, it is apparent that the deceased’s property must be protected.  In the circumstances, I do order that neither the Applicant nor the Objector should intermeddle with the estate of the deceased pending determination of the dispute in issue.

DATED, DELIVERED and SIGNEDthis 29TH day of JANUARY, 2014.

L.N. MUTENDE

JUDGE