In re Estate of M’ndatho Nciuru M’inturu (deceased) (Probate & Administration 46 of 2016)  KEHC 22 (KLR) (10 January 2023) (Ruling)
Neutral citation:  KEHC 22 (KLR)
Republic of Kenya
Probate & Administration 46 of 2016
EM Muriithi, J
January 10, 2023
Jacob Nkubania M’ndatho
Gerald Kathurima Ndatho
1.By a notice of motion dated October 26, 2022, [which should have been a summons] for revocation of confirmed grant and issue of confirmed grant for distribution of the estate as prayed therein, the applicant sought specific orders as follows:
2.The grounds for the application are set out in application as follows:
3.The supporting affidavit sworn by the applicant on October 26, 2022 set out the facts as follows:
4.The application was opposed by a replying affidavit sworn by one Jacob Ndatho on December 8, 2022 as follows:
5.The applicant filed a supplementary affidavit sworn on December 17, 2022 in reply to the replying affidavit in terms as follows:
6.Despite filing a replying affidavit sworn on December 8, 2022 and having been present on December 14, 2022 when the hearing date was set the petitioner did not attend the hearing on December 20, 2022 and the matter proceeded to hearing with the applicant principally urging that “the court directs the distribution of the estate in accordance with the affidavit in support of the application paragraph 4.”
7.The court noted that the beneficiaries before the court on the hearing date and listed herein below supported the application and distribution of the estate property as filed by the applicant Gerald Kathurima:i.Jane Kathure Mugambi;ii.Mary Naitore Ndatho;iii.Gerald Kathurima Ndatho;iv.Dancan Kinyua;v.Stephen Munene;vi.Mutethia Moss Nchiuri;vii.Elvis Bundi;viii.Jecinta Karimi Mugambi; andix.Salome Mwariume.The court particularly notes that the persons whose interests the petitioner purported to pursue, namely, nephews Elvis Bundi and Moses Mutethia and mother -Mwariumwe (widow), all support the distribution of the estate as proposed by the applicant!
8.It is clear that the petitioner seeks more share of the estate on account a sense of entitlement allegedly “defending the family’s land (estate) even during the deceased lifetime to date.” If such expenditure was made during the lifetime of the deceased he could have obtained a gift in the life of the deceased which the distribution court could have taken into account in terms of section 42 of the Law of Succession Act. There is no evidence of such expenditure before the court and it is not possible to factor such claim in the distribution of the estate. The replying affidavit of Jacob Kubania Ndatho merely alleges that the applicant to have “spend a lot of time and money in this cause [and therefore claim to be] entitled to a bigger share and costs.”
9.Such expenditure has not been quantified or claimed from the estate of the deceased. It should be used as an excuse to delaying distribution of the estate in accordance with confirmed grant. The beneficiaries now agree that the estate be distributed in accordance with paragraphs 4 of the affidavit in support of the application for distribution. Only the petitioner opposes the application because of his claim to a bigger share based on his alleged expenditure on the estate. As shown in the affidavit of the applicant in reply, other beneficiaries also allege to have used their monies for purposes of pursuing the assets of the estate. The costs claimed by the petitioner are in the discretion of the court!
10.As this expenditure claim by the petitioner has not been quantified and established, is should be made against the estate and, when proved, the beneficiaries will meet the cost in equal shares in payment in money. The distribution of the estate shall not be obstructed on account of an unproved claim of expenditure for the estate. The petitioner may, if so advised, file a suit for recovery form the estate of any monies that he considers he spent on account of the administration of the estate, and the same shall be recovered from the beneficiaries of the estate.
11.Accordingly, the court finds merit in the applicant for revocation of the grant on the ground of failure to diligently distribute the estate in accordance with the confirmed grant, making it necessary the revocation of the grant.
12.The court makes an order for the appointment of new administrators being the petitioner himself Jacob Nkubania Ndatho and the applicant herein Gerald Kathurima Ndtho, and distribution of the estate as agreed between the beneficiaries and set out in paragraph 4 of the supporting affidavit sworn by the applicant on October 26, 2022.
13.For clarity, estate shall now be distributed as agreed by the beneficiaries as follows:1.Land Parcel No Kiirua/Ruiri/3452 measuring 1.21ha. is distributed to Jacob Kubania Ndatho.2.Land Parcel No Kiirua/Ruiri/ 3453 measuring 1.62ha. is distributed to Gerald Kathurima Ndatho.3.Land Parcel No Kiirua/Ruiri/3454 to be distributed to Stepehen Munene and Duncan Kinyua in equal shares.4.Land Parcel No Kiirua/ Ruiri/3455 is distributed to Jane Kathure Ndatho ¼ acre; Mary Naitore Ndatho 1/4acre; Maricella Karwirwa Ndatho 1.25 acres; and Jacinta Muriuki 2.5 acres.
14.If any administrator fails to execute any documents necessary for the transmission and distribution of the estate assets to the beneficiaries, the Deputy Registrar of the court shall execute the said documents as necessary.
15.There shall be no order as to costs.
DATED AND DELIVERED ON THIS 10TH DAY OF JANUARY, 2023.EDWARD M. MURIITHIJUDGEAppearancesParties in Person