David Kithinji Mugambi v Florence Imathiu & 6 others

The court examined section 66 and the decision in Matheka v Matheka and found nothing in either imposing a requirement of balancing the interests of households of a polygamous deceased. Section 56(1)(b) caps the number of administrators at four, so representation of every household cannot be guaranteed where there are more than four households. The Appellant's claim that his unpresented household entitled him to appointment therefore had no merit.

What weighed on the trial Judge was the existing judgment distributing the entire estate, appealed against by only one beneficiary (Mwongera, the 6th Respondent), with no stay of execution in place. In those circumstances sibling rivalry over distribution was no longer a live issue, and appointing an additional administrator could not be justified on that basis.

The Appellant had himself stated in his oral submissions that he would not put into effect the judgment of Emukule, J of 1st April 2009 because it was under appeal, and no stay had been obtained. The purpose of appointing an administrator at that stage was to execute that judgment. His offer to serve while openly refusing to execute the judgment manifested an intention to frustrate it, and the trial Judge could not be faulted for declining to appoint him.

Of twelve beneficiaries, only one (Mwongera) had appealed against the distribution judgment and only two (Mwongera and Festus) supported the Appellant's application. The majority favoured execution of the judgment, and the trial Judge was prudent to protect those wider interests and refuse the Appellant room to scuttle execution through the back door by becoming a second administrator.