In re Estate of Moses Kirimi Mbogori (Deceased) (Succession Cause 22 of 2019)  KEHC 408 (KLR) (30 January 2023) (Ruling)
Neutral citation:  KEHC 408 (KLR)
Republic of Kenya
Succession Cause 22 of 2019
EM Muriithi, J
January 30, 2023
Tabitha Gacheri Kirimi
Eric Muriungi Kirimi
Pauline Muthoni Laban
1.By chamber summons dated March 10, 2022, the applicant invokes section 47 of the Law of Succession Act to move the court for the orders as follows:-
2.The grounds of the applicant are set out in the application as follows:-
3.The application is opposed by the petitioner upon grounds of opposition dated December 19, 2022 and replying affidavit sworn by the 1st petitioner on the same date. The respondent asserts a right of sole spouse of the deceased and questions the right of the applicant both to sue and to inherit the deceased, based upon the grounds of opposition as follows:
4.Oral arguments made by the counsel for the parties raise the question of the status of the applicant as a “wife” of the deceased and, therefore, right to inherit the deceased. The applicant asserts customary law marriage and the respondent a statutory marriage with deceased.
5.Although the counsel for the parties made respective submissions on these, such issues of marriage both of the applicant and the 1st petitioner to the deceased and or status of the applicant as beneficiary or "dependant" of the deceased are for final determination of the objection to the making of the grant to the petitioner. They are matters which require oral evidence or testimony at full hearing of the dispute.
6.In the meantime, the applicant urges the court to preserve the estate by the order for deposit of rental income in a joint account of the applicant and the petitioner. The respondent opposes the application on the ground of lack of locus standi of the applicant as aforesaid, and contends that it should await the determination of applicant as beneficiary of the estate.
7.The court was invited by the applicant to consider its role to preserve the estate, citing Re Joseph Kamau Kaniaru  eKLR as the rightful owner is not available to protect it.
8.Section 47 of the Law of Succession Act is in the following terms:-
9.With respect, the court considers that the Law of Succession Act gives the High Court wide powers to protect the estate of a deceased person, and it may make such orders as are appropriate in the circumstance of the case for the protection of the estate on application or on its own motion in matter it is seized of, and the object is to ensure that the Estate is preserved in the interests of the eventual beneficiaries and dependants of the deceased persons as may be adjudged by the court upon full hearing.
10.The need to protect the estate of a deceased person was highlighted by the Commission on the Law of Succession Report 1968 in justifying the intervention by the sub-chief, police and administration officers at the local level as eventually provided for under section 46 of the Law of Succession Act which has a marginal note "duties of officers in relation to protection, etc., of deceased's property." The Commission at paragraph 167 observed:
Application for preservation of Estate
11.In the respectful view of this court, on an application for preservation of an estate, the applicant should satisfy the court of the existence of the following conditions:-1. An interest in the estate.2. Risk of wastage of the estate assets before appointment of legal representative.3. Non-existence of a person appointed by will or order of the court as an executor or administrator of the estate.4. Urgency of the matter to justify an order before the full or other grant of representation may be made.These are conditions similar to the requirements under an application for grant of letters of administration ad colligenda bona.
12.As regards the applicants’ interest, there had not been a determination that the applicant is an heir. But it is sufficient that an applicant seeks to preserve the estate for the interest of herself, her children or other person who claims to be a dependant in the estate. In other words, the applicant who seeks to be appointed an administrator or to be declared to have an interest as a beneficiary or dependant is not barred for presenting the case thereof because she has not been so declared.
13.The objector/applicant herein is, in the respectful view of this court, entitled to pursue an order for preservation of the estate to which she has filed an objection and seeks to inherit as an heir in her capacity as "wife" or for the benefit of any children of the deceased.
Is there a risk of wastage of the Estate?
14.There is no evidence of ownership of the assets set out in this application. Although the assets are part of the list of assets filed by the petitioner in the affidavit in support of the petition, the applicant who seeks specific orders in respect to the deceased's properties has a duty in evidence to prove that the assets are registered in the name of the deceased and also importantly that there is rental income generated by these assets, which she seeks to have deposited in a joint account in the name of herself and the petitioner. In the absence of such evidence the court cannot find that there is risk of the estate assets or income being wasted, and, therefore, the 2nd test for the grant of an order for preservation of an estate is not satisfied. There is similarly no urgency shown if it cannot be shown that there exists such properties with income at the risk of waste.
15.In addition, the court has power to order an account on the handling of estate assets at any time, when satisfied that it is necessary to do so. The court may at the appointment of the administrator make an order for account by the person who hitherto has dealt with the estate to account to the person or persons who are in the end appointed administrators.
16.It is not in dispute that there is no executor or administrator appointed under any will on order of court. In the circumstances of this case, where there is no administrator/executor to the estate, the protection of the estate lies with expeditious disposal of the dispute so that an administrator is appointed and the threat, if any, of wastage of the estate is removed. The court also notes that there has not been filed any application for a limited grant ad colligenda bona, or otherwise.
17.Accordingly, from the reasons set out above, the court makes the following orders:1.The application by chamber summons dated March 10, 2022 is declined.2.The matter shall proceed expeditiously to the hearing and determination of the objection proceedings herein on a date to be fixed.
18.There shall be no order as to costs.Order accordingly
DATED AND DELIVERED THIS 30THDAY OF JANUARY, 2023.EDWARD M. MURIITHIJUDGEAPPEARANCESMr. Anyoka Moturi, Advocate for the Applicant.Mr. Mwirigi B., Advocate for the Respondent.