1.The Application coming for consideration for ruling is the one dated June 22, 2022 seeking the following prayers;
2.It is supported by a Supporting Affidavit sworn by Dennis Kipkirui Sang, the 3rd Petitioner/Applicant, he avers that his co-petitioners have given him consent to make and swear the affidavit herein.
3.The 3rd Petitioner/Applicant avers that the Respondent herein and his father now deceased were jointly engaged in various business ventures and further that following the demise of his father the Respondent refused to cooperate with the administrators of the subject estate by neglecting and/or renegading in releasing vital documents that are necessary to collect, prevent wastage, secure and manage the subject estate as required by law. He further avers that the Respondent has entirely frustrated the succession process in respect of the estate of the late Wesley Kipsang Koech.
4.The 3rd Petitioner/Applicant avers that the actions of the Respondent were tantamount to intermeddling with the property of the subject estate.
5.Benjamin Malakwen Koech the Respondent herein opposed the application and filed a Replying Affidavit sworn on September 28, 2022.
6.The Respondent avers that the deceased was his brother and business partner with respect to businesses conducted under the company known as Kericho Guest Enterprises, Soda Connect Distributors and Kongonyot Millers.
7.The Respondent avers that the sole business he undertook with the deceased under Kericho Guest Enterprises Limited was distribution of products of Kenya Breweries Limited (KBL), however, the business terminated after KBL terminated the distributorship agreement, which matter was still pending determination in court.
8.The Respondent avers that Kongonyot Millers collapsed sometime before the death of the deceased in September, 2021 with a working capital of Kshs 920,482/= out of which Kshs 582, 595/= was applied to settle the deceased’s hospital bill incurred at Siloam Hospital.
9.The Respondent avers that Soda Connect was essentially a distributorship business that ceased on carrying business after the demise of the deceased after accruing losses.
10.The Respondent avers that there are several properties acquired jointly between himself and the deceased and registered in their common names which he sought to have subdivided equally between them.
11.The Respondent avers that the proceeds from the said properties held in common between September 2021 and September 2022 ought to be divided equally between them taking into account the amount of Kshs 997,065/= incurred by the deceased’s estate to cover his funeral expenses and other attendant expenses.
12.The Respondent avers that all income accruing form the aforesaid businesses have been credited to Kongonyot Millers Bank account held at DTB Kericho Branch.
13.The Respondent avers that the petitioners’ allegations in the circumstances were unjustified and ought to be dismissed.
14.The 3rd Petitioner/Applicant in response to the contents of replying affidavit dated September 28, 2022 filed a further affidavit in which he avers the since the demise of their father the Respondent has carried on the joint businesses solely to his benefit which has been detrimental to some dependents of the deceased’s estate who were in dire need of school fees and upkeep.
15.The 3rd Petitioner/Applicant avers that the Respondent did not assist in offsetting the hospital and funeral expenses.
16.The 3rd Petitioner/Applicant avers that the subject motor vehicle KAQ 204 M was an asset for use in running the joint chain of businesses.
17.I have considered the application, supporting affidavit, further affidavit and the replying affidavit in opposition to the application. The parties were directed to file written submissions. The parties complied and filed written submissions, upon consideration of rival submissions I find that the issues for determination in this application are as follows;
18.The Petitioners in their submissions reiterated that the Respondent had been in exclusive control and possession of all the properties and/or businesses owned by the deceased to the exclusion of the 1st Petitioner/Applicant and her children and continued to do so to their detriment, which actions were tantamount to intermeddling contrary to section 45 for the Law of Succession. The Petitioner cited the cases of Veronica Njoki Wakagoto (Deceased)  eKLR & In Re Estate of M’Ngarithi M’Miriti  eKLR.
19.The Petitioners faulted the Respondent for failing to avail the vital documents, original title deeds, log books, bank accounts and/or banking slips and statements with respect to the operations of the estate’s assets.
20.The Petitioners contended that the Respondent had engaged in fraudulent activities with regards to the estate to wit banking of proceeds of the estate since the demise of Wesly Kipsang Koech, withholding and/or failing to render a true and just account of the proceeds of the assets of the estate and selling motor vehicle registration number KAQ 204 M.
21.The Petitioners reiterated that they were apprehensive that if the Respondent was not stopped, they would be disinherited.
22.The Petitioners maintained that they suffered and continued to suffer irreparable loss, wastage and damages in the hands of the Respondents unless he be restrained by an order of the court from further siphoning the properties of the estate of the late Wesley Kipsang Koech.
23.The Respondent in his submissions contended that the businesses in question had collapsed and save for allegations that he had committed acts of intermeddling over the deceased’s property, the Petitioners neither particularized such acts nor submitted evidence in support of their allegations.
24.The Respondent asserted that motor vehicle registration KAQ 204 M was his exclusive property as evidenced by a copy of the motor vehicle’s logbook annexture marked “BMK7”.
25.The Respondent conceded that they were various properties held in common that ought to be divided between him and the deceased and referred to a copy of the schedule detailing the said properties and proof of ownership as annexture marked “BMK8”
26.The Respondent conceded that with respect to income earned they were accumulated proceeds of Kshs 1,418,426/= that ought to be subdivided between him and the estate of the deceased taking into account Kshs 997,061/= applied to settle the deceased’s hospital bill.
27.The Respondent contended that the court ought to take cognizance of the fact that he had a bona fide stake in the properties admitted to have been acquired with the deceased, he therefore urged the court not to unduly disposes him of his right to use and occupy the said properties under the guise that he was intermeddling. He cited the findings of the court in Re Estate of Alice Mumbua Mutua (Deceased)  eKLR in support of his assertions.
28.The Respondent contended that the court sitting as a probate and administration court lacked the jurisdiction to hear and determine issues pertaining properties held in common with third parties or proceeds of businesses operated by the deceased with third parties.
30.The Respondent maintained that immovable property held in common with deceased, and questions arising from severance of tenancies and other issues arising is the sole preserve of the environment and land court. The Respondent cited the case of Joseph Kaberia Kumari v Tony Mwenda Muthuara  eKLR.
31.Grant of Letters of Administration were issued by this Court on May 26, 2022 appointing Rael Chebore Koech, Patrick Kiprotich Sang, Dennis Kipkirui Sang and Cherono Winy as joint administrators of the deceased’s estate.
32.Notably, the duties and responsibilities of personal representatives and administrators are fiduciary in nature and they have been laid out in Section 83 of the Law of Succession Act as follows;
33.In Re Estate of Makokha Idris Khasabuli (Deceased)  eKLR Musyoka J highlighted the duties of administrators as follows; “The primary roles of administrators are several. The first is collection or gathering or getting in of the assets of the estate. The second role is the protection or preservation of the assets collected or gathered or gotten in. The third one is payment of debts and liabilities of the estate from the assets gathered and preserved. Finally, is the distribution of the estate after all the debts and liabilities have been settled. Collection or gathering or getting in of assets may require filing of suits to recover estate property. Payment of debts would include clearing any loans the deceased had with any banks or other persons, and where assets are encumbered by charges and mortgages, by having such encumbrances removed through settlement of debts and liabilities, for such encumbered assets cannot possibly be distributed at confirmation before the encumbrances have been cleared.”
34.I have considered the grounds stated on application, the, the facts deponed in the rivalaffidavit plus the written submissions by the parties and I find that the Respondent herein is not an intermeddler as set out in section 45 of the Law of Succession Act The Respondent has conceded that he and the deceased carried on joint businesses and have several properties in common with the deceased. The Respondent has a bona fide stake in the properties admitted to have been acquired with the deceased and therefore the court cannot unduly dispossess him of his right to use and occupy the said properties under the guise that he was intermeddling.
35.I concur with the Respondents that the scope of the probate court is limited to the free and exclusive property of the deceased and therefore lacks the jurisdiction to hear and determine issues pertaining properties held in common with third parties or proceeds of businesses operated by the deceased with third parties. I concur with the sentiments in the court in Re Estate of Alice Mumbua Mutua (Deceased)  eKLR whereby the court stated as follows;
36.Accordingly, I hereby dismiss the application dated June 22, 2022, and direct each party to bear its own costs.