Raquel Otieno Brenda v Stephen Otieno Oonga

e. That this honourable court be pleased to grant the administrators the necessary authority to execute all relevant documents and take all the necessary steps to facilitate the sale of the allocated asset towards settling the liability owed to the firm of O.M. Robinson & Company Advocates and arising from the advocate–client bill of costs filed in HF Misc. Application No. E018 of 2022; f. That this honourable court makes any other or further orders it deems fit and just in the circumstances. g. That the costs of this application be in the cause. 2. The application is premised on the grounds therein and the supporting affidavit of Raquel Brenda Otieno, sworn on 8th October 2024. Ms Raquel Brenda Otieno stated that the Certificate of Confirmation of grant issued on 14th May 2010 to the previous administrators Carren Anyango Opiyo and Bernard Otieno Oonga, did not contain a mode of distribution of shares of the deceased’s assets, which resulted in the current state of affairs with the estate remaining undistributed for 13 years after the confirmation of grant. 3. She stated that on 10th July 2023, the court revoked the grant to the previous administrators and appointed her and Stephen Otieno Oonga the new administrators and directed them to file the proposed mode of distribution of the estate within 30 days, an order they have not been able to comply with due to disagreements and the broken relationship between the two houses. She then urged the court to intervene in the distribution of the estate as the estate has incurred debts which it is unable to pay and which continue to accrue interest, in particular the debt owed to the firm of O.M. Robinson & Company Advocates in the sum of Kes.767,413.42 for legal fees in advocate–client bill of costs. She then urged the court to allow the application. 4. In response, the respondent filed a replying affidavit sworn on 21st January,2025. He stated that the firm of O.M. Robinson & Co. Advocates was not acting on their interest as beneficiaries and that the previous administrator Bernard paid legal costs for his advocates, Kevin & Associates LLP and therefore the 1st administrator should not seek to have legal costs arising out of her representation taken out of the estate unless she agrees to have the same deducted from her shares of the estate. 5. He deposed that the remnants of the estate had not been ascertained, as most assets had been sold or are non-existent, and thus the need to determine the status of the same and its valuation before any orders against the estate are made. He argued that it was not in the interest of the beneficiaries to sell the remaining assets, as they hold sentimental value for the family. 6. He further stated that they proposed that the applicant identify a valuer to undertake the valuation of the assets to enable them to pay her her share out of the estate. He opposed the applicant's proposal and urged the court to dismiss the application with costs. 7. The applicant filed a further affidavit sworn on 29th January 2025. She reiterated her position and stated that legal services were not offered to the applicants alone in their individual capacities but in a bid to protect the estate and ensure proper administration by the administrators. 8. The applicant, through her advocates, Kiiru & Nguono Company Advocates, filed written submissions dated 29th January 2025. Counsel submitted on two issues, namely, whether the legal fees owed to the firm of O.M. Robinson & Company Advocates ought to be borne by the estate of the deceased, and whether the court ought to distribute the estate of the deceased. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19443/eng@2025-05-23 2

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9. On the first issue, counsel relied on Section 2 of the Advocates Act and submitted that the said firm was instructed by Carren Anyango Opiyo, a former administrator of the estate, to act for the estate. Counsel also relied on Section 83(c) of the Law of Succession Act and submitted that the legal costs incurred in the administration of the estate ought to be borne by the estate and that the applicant and the previous administrator, Carren, instructed the advocate's firm in good faith and in the carrying out of the proper administration of the estate. 10. Counsel also relied on Section 86 of the Law of Succession Act and submitted that the distribution is long overdue, and the same would require the settling estate’s debts before distribution can be made. Counsel urged the court to order that the estate of the deceased person bear the decretal sum. 11. On the 2nd issue, counsel submitted that the beneficiaries are not getting younger and financial obligations such as bank interest, fines on land rates, penalties from statutory obligations like KRA are multiplying, and some assets are not appreciating. Counsel urged the court to exercise its inherent jurisdiction and grant the orders sought. 12. The respondent, through his advocates Mulandi Kisabit & Associates Advocates, filed written submissions dated 10th February 2025. Counsel submitted on three issues, namely: whether the legal fees owed to the firm of O.M. Robinson & Company Advocates ought to be borne by the estate of the deceased; whether the court ought to distribute the estate of the deceased; and who should bear the costs and interests of the application filed herein. 13. On the first issue, counsel relied on Section 2 of the Advocates Act and reiterated the respondent’s position on the parties bearing their own legal fees and submitted that the sum owed to the firm of O.M. Robinson &Company Advocates should be catered for by the 1st administrator and Ms Carren Anyango. 14. On the 2nd issue, counsel submitted that Mrs Carren Anyango and Sign Onyango should not be beneficiaries going forward for reasons that Ms Carren has since remarried. At the same time, Sign is not a biological son of the deceased nor a stepchild and therefore has no beneficial interest in the estate. Further, the beneficiaries had agreed not to subdivide the estate of the deceased and opted to manage the same as one; however, with the happenings, they requested the applicant to procure the services of a valuer to have the net value of the estate established, upon which a partial subdivision can be derived and achieved. 15. On the 3rd issue, counsel relied on Sections 26 and 27 of the Civil Procedure Act and urged the court to grant the same. 16. In conclusion, counsel urged the court to dismiss the application with costs. 17. The role of the administrators is to collect the assets of the estate, pay off the debts and distribute the estate of the deceased. Section 83 of the Law of Succession Act states that:Personal representatives shall have the following duties— a. to provide and pay out of the estate of the deceased, the expenses of a reasonable funeral for him; b. to get in all free property of the deceased, including debts owing to him and moneys payable to his personal representatives by reason of his death; c. to pay, out of the estate of the deceased, all expenses of obtaining their grant of representation, and all other reasonable expenses of administration (including estate duty, if any); https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19443/eng@2025-05-23 3

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18. d. to ascertain and pay, out of the estate of the deceased, all his debts; e. within six months from the date of the grant, to produce to the court a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings therewith up to the date of the account; f. subject to section 55, to distribute or to retain on trust (as the case may require) all assets remaining after payment of expenses and debts as provided by the preceding paragraphs of this section and the income therefrom, according to the respective beneficial interests therein under the will or on intestacy, as the case may be; g. within six months from the date of confirmation of the grant, or such longer period as the court may allow, to complete the administration of the estate in respect of all matters other than continuing trusts, and to produce to the court a full and accurate account of the completed administration; h. to produce to the court, if required by the court, either of its own motion or on the application of any interested party in the estate, a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings therewith up to the date of the account; i. to complete the administration of the estate in respect of all matters other than continuing trusts and if required by the court, either of its own motion or on the application of any interested party in the estate, to produce to the court a full and accurate account of the completed administration. The court in the case of In re Estate of Julius Mimano (Deceased) [2019] KEHC 10103 (KLR) in dealing with Section 83 of the Law of Succession Act stated, “ Section 83 of the Act imposes duties on personal representatives to pay for the expense of the disposal of the remains of the deceased, to get in or gather or collect the assets of the estate, to pay for the expenses of the administration of the estate, to ascertain and pay out all debts and liabilities, and eventually to distribute the assets amongst the persons beneficially entitled.” 19. It would appear to me that the parties have not agreed on what assets comprise the estate and what its liabilities are. As those two essential steps haven’t been done, there is no way the grant can be confirmed at this point. 20. In the circumstances, I decline to allow the application. The application is therefore dismissed with no order as to costs. 21. It is so ordered. DATED AND SIGNED AT MOMBASA, THE 23RD DAY OF MAY 2025. DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS. GREGORY MUTAI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19443/eng@2025-05-23 4

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