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In re Matter of the Estate of Shem Nacheri Wamunga (Deceased) (Miscellaneous Application 002 of 2022) [2022] KEHC 2982 (KLR) (2 June 2022) (Ruling)
Neutral citation:
[2022] KEHC 2982 (KLR)
Republic of Kenya
Miscellaneous Application 002 of 2022
TM Matheka, J
June 2, 2022
IN THE MATTER OF THE ESTATE OF SHEM NACHERI WAMUNGA (DECEASED)
Ruling
1.Shem Nacheri Wamunga died on 5th October 2021, and according to the letter from the Assistant Chief Afraha Sub Location, he committed suicide. His wife having pre-deceased him he was survived by seven (7) beneficiaries being his children.
2.On 1st February 2022 Betty Atemba Nacheri and Catherine Atieno Mayenga filed Summons dated even date seeking the consent to be appointed as the Administrators of the estate under rules 49 and 73 of the P & A rules from the Summons, their siblings Julia Namwenda Nacheri, Paul Akolo Nacheri, Samwel William Wamunga, James Robert Onyango had refused to attend a meeting set on 28th December 2021 to discuss the appointment of administrators hence the application. They had also demonstrated their unwillingness to cooperate with the applicants on the issue of appointment of administrators. The application was served on the counsel for the four (4), the firm of Ochieng Gai & Advocates.
3.The matter came up twice for hearing, Mr. Gai sought time to settle the issue with the family, this was on 10th March 2022. On 4th April 2022. Mr. Gai requested for time to place his Replying Affidavit on the file. I directed that the Replying Affidavit be placed on the file at the Close of Business on that day and fixed the Ruling for 2nd June 2022.
4.As at the time I am writing this Ruling, there is no Replying Affidavit from the firm of Ochieng Gai & Co. for respondents. Ideally the application is not opposed.
5.Nevertheless, I have perused the Supporting Affidavit of applicants, and the annexures therewith. It is evident that they have done everything possible in the circumstances to get the consent of their siblings. They have refused, and it is apparent that they will not give their consent.
6.Rule 73 of the P&A rules save the inherent powers of court to process of the court. Rule 49 gives provides for applications otherwise not provided for to be filed by way of Summons supported by affidavit.
7.The estate cannot remain without an administrator otherwise it may be exposed to waste. In any event the other beneficiaries will still have the opportunity to participate in the proceedings once they are filed.
8.Clearly the application is merited. The applicants can take leadership and lead this process.
9.I therefore allow the application and direct that Betty Atemba Nacheri and Catherine Atieno Mayenga be appointed as joint administrators of the estate of the deceased, and a grant to issue accordingly.
Dated, Signed and Delivered virtually this 2nd day of June, 2022.Mumbua T MathekaJudgeIn the presence of;CA EdnaOmwenyo & Co. Advocates, for applicant
