Case ID:168527

In re Estate of Jesse Kimani (Deceased) [2020] eKLR

Case Metadata

Case Number:

Succession Cause 2885 of 1999

Parties:

In re Estate of Jesse Kimani (Deceased)

Date Delivered:

17 Dec 2020

Case Class:

Civil

Court:

High Court at Nairobi (Milimani Law Courts)

Case Action:

Ruling

Judge(s):

Maureen Akinyi Odero

Citation:

In re Estate of Jesse Kimani (Deceased) [2020] eKLR

Court Division:

Family

County:

Nairobi

Case Outcome:

Application allowed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

FAMILY DIVISION

SUCCESSION CAUSE NO. 2885 OF 1999

IN THE MATTER OF THE ESTATE OF JESSE KIMANI (DECEASED)

TITUS NDUNGU KIMANI........................................APPLICANT

VERSUS

STANLEY MURIGI KIMANI

alias

STANLEY MURIGI MURAYA KIMANI.....RESPONDENT

MWANGI MUIRURI KIMANI..................INTERESTED PARTY

RULING

1. Before court is the Summons dated

24

th

November 2020

by which

TITUS NDUNGU KIMANI

(the Applicant) seeks the following orders:-

a. SPENT

b. SPENT

c. THAT an order do issue compelling the Respondent to immediately release the original Deed Plan No. 368446, 368453 and 410343 to the Applicant within 7 days latest from the date of service of this application.

d. THAT an order do issue compelling the Respondent to surrender the original Certificate of Title in respect of LR. No. 5979/4 to the Applicant within 7 days from the date of service of this application for endorsement of the subdivisions herein.

e. THAT the Deputy Register be authorized to sign the relevant transfer documents / Assent any other legal document on behalf of Titus Ndungu Kimani in respect to the estate of Jesse Kimani (Deceased) for purposes of distribution of the deceased Estate.

The Summons was supported by the Affidavit of even date sworn by the Applicant herein.

2. The Respondent

STANLEY MURIGI KIMANI

alias

STANLEY MURIGI MURAYA KIMANI

opposed the application through his Replying Affidavit dated

8

th

December 2020

. The Interested Party

MWANGI MUIRURI KIMANI

also filed an “

Affidavit in Support

” dated

10

th

December 2020

. The application was canvassed before the Court on 1

1

th

December 2020

by way of oral submissions.

BACKGROUND

3. This matter involves the Estate of

JESSE KIMANI

(hereinafter the Deceased) who died on

29

th

November 1999

, leaving the following dependants:-

i. Elizabeth Nyambura Kimani – widow

ii. Kabura Anne Naomi Mukasa – daughter

iii. Mwangi Muiruri Kimani – son

iv. Stanley Murigi Kimani – son

v. Ndungu Titus Kimani – son

4. Following the demise of the deceased, his widow

Elizabeth Nyambura Kimani

petitioned for

Letters of Administration Ad Colligenda Bona

for purposes of paying out the liabilities of the estate. Thereafter on

8

th

April 2000

, the widow of the Deceased also passed away. The children of the Deceased then swore an affidavit seeking to substitute the name of their mother with those of

Mwangi Muiruri Kimani

,

Stanley Murigi Kimani

and

Ndungu Titus Kimani

as the Administrators of the estate. A Confirmation of Grant for the estate of the deceased was issued on

20

th

June 2003

and was later rectified on

14

th

June 2017.

5. The Applicant avers that as per the Confirmed Grant the following parcels of land were allocated to him:-

L.R No. 5979/9 Deed Plan No. 368446

L.R No. 5979/14 Deed Plan No. 368453

L.R. No. 12057 Deed Plan No. 410343

6. That the Respondent as co-administrator collected all the Deed Plans as well as the mother title to

L.R 5979/4

for purposes of safe-keeping awaiting distribution of the estate. However todate distribution has not been completed. The Applicant complains that, despite repeated demands the Respondent has deliberately failed and/or declined to sign transfer instruments in respect of the parcels of land allocated to the Applicant and that the Respondent has declined to release the respective Deed Plans for the said properties to enable the Applicant register the said parcels in his own name. That these actions of the Respondent are aimed at frustrating the Applicants efforts to sell of a portion of his inheritance for which he has secured a ready buyer for an amount of

Kshs. 90 million

. That said Sale Agreement had a completion dated of

13

th

December 2020

. That all efforts to resolve this matter amicably have failed and as such the Applicant was left with no option but to approach the Court for orders. The Applicant urges that if the orders sought are not granted he stands to suffer great prejudice and that it is in the best interest of justice for the Court to grant the orders being sought.

7. In reply the Respondent confirms that he is a co-administrator of the estate of the deceased. The Respondent claims that the firm of

Mwaura Waihiga Advocates

who initially represented their late mother as administrator took the family round in circles for two years before they finally realized that the application for Letters of Administration had not even been lodged in the High Court.

8. The Respondent further averred that his enquiries at Land Office revealed that the lease for

L.R No. 5979/4

had expired and the Deed Plans were missing. That the file went missing for about five (5) years, and that he only caught sight of the mother title

(LR 142691)

at the Advocates office after conclusion of the sale in the year

2014

. The Respondent confirms that the mother title which was rectified in the year

2017

is in his custody and he avers that he has conscientiously worked towards giving full effect to the distribution of the estate as per the Confirmed Grant.

9. The Respondent confirmed that he has indeed processed title for

Titus Ndungu Kimani

being

Title IR No. 189813

for

LR No. 597919

and that the same were handed over to the Advocates on

October 2017

. He further confirms that in

January, 2018

he handed over the

Title LR No. 12057/5

for

LR No. 192797

.

10. The Respondent accuses

Mwaura Advocates

and the Interested Party of illegally intermeddling with the property of the deceased. He states that the Applicant has chosen to rebel by going ahead to dispose of his share of the inheritance through a sale agreement, as opposed to giving full effects to the terms of the Confirmed Grant. The Respondent declares that it is his desire to have the entire estate disposed of wholistically rather than in a piecemeal manner. Lastly the Respondent asserts that all the beneficiaries ought to contribute towards the development of public utilities in the Estate.

11. The Interested Party

Mwangi Muiruri Kimani

also a co-administrator of the Estate had sworn an Affidavit dated

10

th

December 2020

in support of the Respondent. However on

11

th

December 2020

the Interested Party addressed the Court in person and disowned his Affidavit in Support. He explained that he signed the said Affidavit whilst under the influence of alcohol. The Interested Party asked the Court to rely instead on his Affidavit of

11

th

December 2020

and indicated that he fully supports the Applicants prayer to have the Deed Plan released to him.

ANALYSIS AND DETERMINATION

12. I have considered the facts of this case, the submissions made by Counsel as well as the relevant law. It is not in dispute that the Applicant, the Respondent and the Interested Parties are all the co-administrators of the estate of the deceased. Neither is it in dispute that the parties are all the children and legal beneficiaries of the estate of the deceased.

13. The Applicant told the Court that he has entered into a Sale Agreement with a third party for the sale of a portion of his inheritance for

Kshs. 90 million

and that the refusal of the Respondent to release the relevant documentation puts the entire sale transaction in jeopardy.

Mr. Mwaura

who acts for the parties in the sale transaction gave submissions in support of the application to enable the said transaction to be completed. It is however trite that a Probate Court is only mandated to deal with issues of Succession and does not involve itself in issues involving 3

rd

parties who are not beneficiaries of the estate. In the case of

PRICILLA NDUBI & ZIIPPORAH MUTIDA –VS- GERISHON GATOBU MBIU, MERU SUCCESSION CAUSE No. 720 of 2013

, it was held that:-

“

The primary duty of the Probate Court is to distribute the estate of the deceased to the rightful beneficiaries

. As of necessity, the estate property must be identified. Thus, where issues on the ownership of the property of the estate are raised in a succession cause, they must be resolved before such property is distributed. And that is the very reason why Rule 41(3) of the Probate and Administration Rules was enacted so that claims which are prima facie valid should be determined before confirmation.” [own emphasis]

14. Therefore the question of the Sale agreement entered into by the Applicant and its illegality as alleged by Respondent is not central to the decision of this Court. The duty of an Administrator or Administrators is to distribute the estate of the deceased to the named beneficiaries. It is well established that no landed property may be sold to a third party before a Grant has been confirmed. In this case the Grant was confirmed on

20

th

June 2003

and said Confirmed Grant was rectified on

14

th

June 2017

. The Certificate of Grant clearly lists the properties which are to devolve to the Applicant herein. These ought to be transferred to him as soon as possible.

15. The bone of contention appears to be the mother title which the Applicant requires to enable him deal with his inheritance as he wishes. I do not buy the Respondents argument that he is holding on to the mother title to enable the estate be distributed in a wholesome manner. The Respondent has admitted in this Replying Affidavit that he has already processed other titles for other beneficiaries, why then does he now balk at processing titles for the Applicant.

16. The Respondent is a co-administrator

together

with the Applicant and the Interested Party. He is neither their prefect nor their superior. The Respondent has no basis upon which to deny any beneficiary his portion of the inheritance no matter how much he may disagree with the manner in which said beneficiary intends to dispose of his said inheritance. The Respondent has an obligation to release the mother title as well as the Deed Plans to enable all the beneficiaries access what is due to them. The Applicant does not have the right or the power to supervise and/or approve or the manner in which a legal beneficiary decides to deal with his/her bequest. All the beneficiaries including the Applicant have the right to deal with their inheritance as they wish and the Respondent cannot purport to withhold the mother Title and Deed Plans to the detriment of the other beneficiaries by denying them full enjoyment and use of the properties due to them.

17. Accordingly I find merit in this application and I hereby make the following orders:-

i. The Respondent is hereby ordered to immediately release the original

Deed Plan Nos. 368446, 368453 and 410343

to the Applicant.

ii. In default of compliance of (i) an order do issue to the Director of Survey to re-issue

Deed Plan No. 368446, 368453 and 410343.

iii. The Respondent is hereby ordered to immediately surrender to the Applicant the Original Certificate of Title in respect of

LR No. 5979/4

for endorsement of the requisite subdivisions.

iv. Costs of this application to be borne by the Respondent.

It is so ordered.

Dated in Nairobi this 17

TH

day of December, 2020.

…………………………………..

MAUREEN A. ODERO

JUDGE