1.The deceased Anne Mbula Munyao died on 5th October 2021. She left a written Will dated 17th August 2019 in which she appointed her friends Ruth Mueni Maweu and Yvonne Maranga as executors. In the Will, she acknowledges the respondent Sammy Kipchirchir Sang as her husband and the applicant Owen Ndetu Muoki as her only child. She Willed that her residuary estate goes to the applicant, and asked that before he gets to age of majority the respondent and Ruth Mueni Maweu shall be his trustees over the property. The applicant is now an adult.
2.The respondent has challenged the validity of the Will, but the challenge has not been heard or determined.
3.The present application is dated 8th March 2022 by the applicant. He seeks the preservation of the motor vehicle KCZ 325N (Toyota Prado V8) pending the final distribution of the estate. He wants the vehicle delivered to him or to the executors for preservation. There is no dispute that the vehicle belonged to the deceased and is in the possession of the respondent.
4.The respondent opposed the application. He referred to his challenge of the validity of the Will. He explained that he was driving the vehicle which got involved in an accident. He paid Ksh.550,000/= to redeem and settle the costs of contributory repairs to the vehicle; that the insurance had advised that the costs of the repair was Kshs.1,886,000/= and the insurance was going to redeem only Kshs.1,000,000/=. After the Kshs.550,000/= there was Kshs.336,000/=to be borne. He sated that he had always used and maintained the vehicle, and that the applicant had vehicle KBJ 830L for his use. The vehicle belonged to the deceased.
5.Until the Will is successfully challenged, the executors have under section 80(1) of the Law of Succession Act (Cap. 160) the duty, as they wait for formal appointment through a grant of probate, to do all things that pertain to their executional office. This includes get in and receiving the testator’s (the deceased’s) estate. Section 80(1) of the Act provides that:-
6.The said motor vehicle belonged to the deceased, and is therefore estate property that should be preserved as the parties quarrel about whether or not the Will was valid. The continued handling of the vehicle by the respondent amounts to intermeddling under section 45 of the Act (In the Matter of the Estate of David Nturibi M’Ithinji (Deceased)).
7.I allow the application, and direct that motor vehicle KCZ 325N Toyota Prado V8 shall immediately be handed over by the respondent to the executors of the Will of the deceased for preservation.
8.Costs shall be in the cause.