Gloria Nicole Mwaura & 1 other v Public Trustee & 2 others

4. This honourable court do hereby issues an order directing the Director of the National Transport and Safety Authority (NTSA) to provide comprehensive historical records and transaction documents of the vehicles registered under the name of Colman Morosso Bernardi (deceased). 5. This honourable court do and hereby issues an order directing the Chief Land Registrar in Nairobi to produce historical records of Land Reference No. 209/8343/72, and details of Houses L.R. 1870/VI/169 located in Westlands. 6. The court be pleased to grant any other orders that it may deem necessary in the interest of justice. 7. The costs of this application be in the cause. 2. The application is based on the grounds thereof and supported by affidavit sworn by Gloria Nicole Mwaura on 31st May, 2025 who avers inter alia that she swears the affidavit on her own behalf and on behalf of the second Applicant. The Applicants bring the application in their capacity as daughters and legal administrators of the Estate of the late Stella Mkafitina Assenga, having obtained a limited grant of letters of administration ad litem in Nairobi High Court Succession Cause No. HCFP&A/ E927/2024. 3. The late Stella Mkafitina Assenga was the daughter of Bernardi Saiba Kimario and Hellena Bernardi, both deceased, who were dependants of the Estate of Colman Morosso Bernardi (deceased). As nieces of Colman Morosso Bernardi and granddaughters of Bernardi Saiba Kimario, the Applicants assert that they are entitled to inherit from the estate under Section 39 of the Law of Succession Act. 4. Colman Morosso Bernardi died intestate on 3rd March, 1986, unmarried and without children. By consent, the Public Trustee was appointed administrator of his estate on 1st July, 1992. However, the Public Trustee has failed to account for or make provision for all lawful beneficiaries and has not rendered a complete and accurate account of the estate’s movable and immovable assets. Despite written requests for proceedings and court orders relating to Public Trustee Administration Cause No. 271 of 1990, the Public Trustee indicated that neither the pleadings nor the court file could be traced. 5. The Applicants further state that several motor vehicles registered in the name of the deceased have never been accounted for, and that the National Transport and Safety Authority (NTSA) declined to provide historical ownership and transaction records without a court order. They therefore seek orders summoning both the Public Trustee and NTSA to produce a comprehensive report on the status of all assets of the estate. 6. It is also deponed that the deceased owned L.R. No. 209/8343/72 in South C, Nairobi and property known as L.R. No. 1870/V/169 in Westlands, Nairobi. The South C property had been gifted to their mother during her lifetime, and upon her death, the Applicants inherited and continue to occupy it. 7. They accordingly pray that the court grants the sought orders to ensure proper administration, accountability and distribution of the Estate of Colman Morosso Bernardi and to safeguard the rights of all beneficiaries. 8. The application is not opposed and there are no written submissions filed. Analysis And Determination: 9. I have carefully read the application together with the affidavit in support. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/414/eng@2026-01-27 2

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10. In Mohasons Food Distributors Ltd & another v Kenya Commercial Bank Limited & another [2021] eKLR the court stated as follows: “ 8] Although the application is unopposed, it is the duty of the Court to nevertheless subject it to a merit evaluation in accord with the applicable laws and principles. Indeed, in Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli & 2 others [2018] eKLR the Supreme Court of Kenya held that: “…as a court of law, we have a duty in principle to look at what the application is about and what it seeks. It is not automatic that for any unopposed application, the Court will as a matter of cause grant the sought orders. It behooves the Court to be satisfied that prima facie, with no objection, the application is meritorious and the prayers may be granted. The Court is under a duty to look at the application and without making any inferences on facts point out any points of law, such as any jurisdictional impediment, which might render the application a non-starter. We see no such jurisdictional issue in the application before us. Hence we have proceeded to consider the facts before us as against the jurisprudence for grant of stay orders set by this Court…” 11. In re Estate of Julius Mimano (Deceased) [2019] eKLR, Judge Musyoka stated as follows: “The personal representative of a deceased person holds a unique position in law. The property of the dead person is vested in them by virtue of section 79 of the Law of Succession Act. The effect of section 79, read together with section 82 of the Act, is that the same puts the personal representative on the same footing with an owner of the property, in the sense that he exercises the powers that the legal owner of the property would have exercised were they alive, and suffered the same burden of duties and obligations over the property as the legal owner would have been under were they to be alive. Yet, the property, although vested in them by law, would not be theirs. Although the personal representative has legal title akin to that of an owner, the property does not belong to them. They only hold it in trust for the eventual beneficiaries thereof, that is those named in the will, in cases of testate succession, and those identified at confirmation of grant, in cases of intestacy. They would also be holding it for the benefit of creditors and any other persons who might have a valid claim against the estate. That would mean that they are trustees of the estate, and, indeed, the Trustee Act, Cap 167, Laws of Kenya, defines trustees to include executors and administrators. In the circumstances, therefore, the personal representative would stand in a fiduciary position so far as the property is concerned, and owes a duty to the beneficiaries to render an account to them of their handling of the property that they hold in trust for them. The duty to render accounts to beneficiaries arises from the trust created over the estate property when the same vests in the personal representative to hold on behalf of the beneficiaries.” 12. On the uncontroverted material before the court, the Applicants have established a proper basis for grant of the orders sought. First, they demonstrate a sufficient interest in the estate as dependants’ descendants and potential beneficiaries under Section 39 of the Law of Succession Act, the deceased having died intestate, unmarried and without issue. 13. Secondly, they show prima facie administrative lapse by the Public Trustee, an administrator appointed by the court, through failure to render a full inventory and accounts and the inability to trace pleadings/ orders for Public Trustee Administration Cause No. 271 of 1990, matters which go to transparency and the court’s inherent jurisdiction to ensure due administration of estates. 14. Thirdly, the requests directed at NTSA and the Chief Land Registrar are proportionate and necessary for purposes of tracing, preserving and accounting for estate assets, particularly where statutory agencies have a duty of care to both the public and private persons and for that matter their estates. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/414/eng@2026-01-27 3

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The two bodies cannot claim not to have records yet they are tasked in law to carry their respective mandate and responsibilities. 15. Consequently, I do find merit in the application and allow it as prayed under paragraphs 2,3,4, and 5. 16. The above orders be complied with within the next 45 days from the date herein 17. Costs to be in the cause. DATED SIGNED AND DELIVERED VIA VIDEO LINK THIS 27TH DAY OF JANUARY 2026. H K CHEMITEI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/414/eng@2026-01-27 4

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