1.The deceased Ibrahim Mucheru Wahothi died testate on 5th September 2013. His written Will was dated 6th December 2005. The executors of the Will are the respondents Anne Nyathira Mucheru and John Warui Joakim Kagwathi. They obtained a grant which was confirmed on 15th November 2021.
2.The deceased was survived by five (5) households. The applicant Esther Wanjiku Mucheru is the deceased’s second widow. She filed the present application dated 31st January 2022 seeking the following orders:-
3.It is important to point out that, following the death of the deceased, there was a dispute regarding the place of burial. The dispute was in HCCC No. 25 of 2013 at Nairobi. It was finally resolved by the Court of Appeal in Civil Appeal No. 68 of 2015. There was also CM Criminal Case No. 5460 of 2013 at Makadara in which the 1st respondent was alleged to have forged the deceased’s Will. He was acquitted of the charge. The grant was subsequently confirmed by consent.
4.The applicant’s complaint in the application is that she is in her eighties and that the respondents are refusing to distribute the estate of the deceased so that she benefits from her share in accordance with the Will; that each house should contribute Kshs.140,000/= towards it. The respondents want the issue addressed first before the distribution of the estate can begin. The applicant’s case is that the issue of the funeral expenses should not stand in the way of the distribution of the estate of the deceased. She states that she should get part of her estate, and from that she can pay Kshs.140,000/= that is being sought.
5.Her second issue is that parcels Ndarugu/Gakoe/598 and Chania/Kanyoni/1292, both being part of the estate of the deceased, have been leased out by the respondents to persons who have planted pineapples, and that they are the ones benefitting from the proceeds to the exclusion of the other beneficiaries. This is part of the reason why she wants accounts.
6.The respondents state that, following the Court of Appeal decision, the rest of the houses refused to pay the funeral expenses which forced the 1st respondent to bear the cost above. They want reimbursement. They did not address the issue of having rented out part of the estate. They also did not address the request for accounts. On the issue of the distribution of the estate, this is what they stated:-
7.The deceased left a substantial estate, and in it the deceased was quite clear on what each widow and her children would receive upon his death. Most of the property comprised parcels of land. The deceased indicated to whom each parcel would go. The certificate of confirmation has mirrored what the Will indicated. The respondents, as the executors of the Will, should not find it difficult to distribute the deceased’s estate.
8.The Court of Appeal directed that –
9.The grant to the respondents was confirmed on 15th November 2021. This application was brought on 31st January 2022. Under section 83(g) of the Act, the completion of the administration of the estate of the deceased was required to be done within 6 months, and thereafter the respondents to produce to the court a full and accurate account of the completed administration. The application did not wait for the expiry of the six months before a complaint was raised about the completion of the administration of the estate.
10.However, section 83(h) of the Act provides that the respondents are required to produce to the court, if required by the court, either of its own motion or on the application of any interested party in the estate, a full inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings therewith up to the date of the account. The applicant is a beneficiary of the estate of the deceased. She has a legitimate interest to know how the estate is being dealt with by the respondents who are the executors of the deceased’s Will, and have a grant.
11.That being the case, and considering the application and the provisions of section 47 of the Act and rule 73 of the Probate and Administration Rules, in effort to make sure that the estate of the deceased who died on 5th September 2013 has been distributed to the respective beneficiaries, I make the following orders:-(a)within 90 days from today the respondents shall distribute all the land properties to the respective beneficiaries in accordance with the certificate of confirmation, and if that is not done the Deputy Registrar of this court shall sign all the necessary papers and documents to ensure that the parcels of land are transferred to the beneficiaries;(b)upon the expiry of the 90 days the respondents shall file and serve an affidavit of a full and accurate inventory of all the assets and liabilities of the estate and a full and accurate account of their dealings with the estate, including information regarding the transferred estate to the beneficiaries;(c)the account shall include both settled and unsettled debts, and proposal on how to settle them; and a statement of the assets that have generated income since the death of the deceased and where the income is and/or has been applied;(d)the inventory and account of the assets that will not have been distributed by the end of the 90 days and a proposal of how it will be distributed in accordance with the certificate of confirmation; and(e)upon the service of the affidavit, the applicant or any other beneficiary shall be at liberty to respond within 21 days.
12.The cause shall be mentioned on 30th January 2023 for further directions. Costs shall be borne by the respondents.