Nzuku Mwivithi v Stella Wanza Mwivithi & 1 other

5. That this court be pleased to order or direct that, the respondents herein do file statements of rent collected from the following plots, houses, shops, since the demise of the deceased, vizly: i. Plot No. D21 - Kitui ii. Plot No. 126 – (BLI) iii. Plot No. 3 Kisasi iv. Plot No. 34 Kisasi v. Plot No. 25 Kisasi 6. That this Honourable court be pleased to order or direct, the 2nd respondent herein to disclose the deceased’s share from the first batch or dispatch of funds from the state in part settlement of the decretal sum due in HC ELC No. 107 of 2008 – Rose Kavita Mwivithi & 2 others -vsthe Commissioner of Lands & 5 Others – Malindi, where the Judgment was entered for the 2nd respondent herein, deceased and another party for Kshs. 207,034,178.70. 7. That this court be pleased to order or direct the three co-administrators appointed to represent each house of the deceased to collect, gather and assemble an inventory of the assets and properties and liabilities of the deceased and file the same with the court. 8. That this court be pleased to refer the issue or question of the sharing and/or distribution of the assets, or properties, or monies of the estate of the deceased amongst all the beneficiaries, and the settlement of all the debts and/or liabilities or any dispute to a court annexed mediation process. 9. That this court be pleased to issue any other or further orders or directions or pre-trial directions as this case management demand or ends of justice may require or demand, in ensuring the overriding objectives of a succession cause are observed or upheld. 2. The summons is supported by the affidavit of Nzuku Mwivithi sworn on 6/11/2024. His averments are that he is a son of the deceased from the first household which he is representing in these proceedings. That it had been agreed that he would represent the first house but his name was omitted. 3. That it was agreed that all the properties of deceased and the liabilities would be gathered before filing the succession. That the total estimated value of the estate is Kshs. 60,000,000/= that is sixty Million. That there was HC Malindi ELC No. 107/2008 Rose Kavita Mwivithi & Others -vs- the Attorney General & Others where they were awarded Kshs. 207,034,178.70 and that 1/3 (one third) of the money forms part of the Estate of the deceased which is beyond the jurisdiction of the Chief Magistrate’s Court. 4. That there are rental incomes from some of the assets of the deceased which have not been accounted for by the administrators. The applicant was therefore seeking an order that the administrators be ordered to account for all the assets and income of the deceased. The Interested Parties filed a replying affidavit sworn by Trix Farida Mwivithi sworn on 28/10/2024. The interested parties supported the application. 5. Rose Kavita filed a replying affidavit and contends that Alice Mulee Mwivithi was never a wife of the deceased but a woman married by the clan when the deceased was still a small boy in primary school and in accordance with customary traditions she was allowed to use the name of the deceased. That none of the children of he decreased Alice Mulee Mwivithi are biological children of the deceased. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4235/eng@2026-01-27 2

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6. She did not object to having an inventory of the estate of the deceased being compiled before distribution. That the matters raised by the applicant can only be determined at the time of the confirmation of the grant where he can file a protest. That the applicant was not eligible to be appointed as an administrator. It is my view that the contentious issues in the application were agreed before my predecessor Justice R.K. Limo who gave a ruling on 15/11/2024 where he granted prayer No. 2 and appointed Nzuku Mwivithi to represent the first house, Trix Farida Mwivithi & Stella Wanza Mwivithi to represent the second house and Rose Kavita Mwivithi to represent the 3rd house. 7. The administrators were ordered to account for all the assets, liabilities and rents accrued from the estate of the deceased herein. The administrators were further directed that all proceeds from rents be deposited in a joint account to be opened by the four administrators. 8. The 2nd respondent was directed to file in this court a statement of account detailing all the rent proceeds collected from the assets comprising the estate and how the same has been utilized and or distributed. The parties were then to take directions on other prayers. The counsel for the applicant submitted that prayers 4 & 6 are pending. 9. I have considered the prayer No. 4 on the summons. The funds in the bank accounts form the estate of the deceased and funds in the accounts should be distributed to his lawful beneficiaries. The Law of Succession Act places a duty on the administrators of the deceased to disclose all the assets and liabilities of the deceased. Section 83 provides as follows: “ 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); (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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4235/eng@2026-01-27 3

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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.” 10. This also applies to prayer No. 6 as the administrator should make a full disclosure of the funds if any that are due to the estate of the deceased from the decree issued in Malindi HC ELC No. 107/2008 Rose Kavita Mwivithi & 2 others -vs- Commissioner of Lands & 5 Others. The deceased was named as a party in the said proceedings and adduced evidence that he had bought the plot in dispute in the case whose title deed he was ordered to surrender and he never got another title deed. The averment that the deceased was not a party is not supported by the evidence. 11. I therefore order that the administratix disclose the amount of money which was due to the deceased. The Judgment is clear and needs no explanation. As regards the inventory of the estate of the deceased as well as liability, the Law of Succession Act provides that such inventory be filed in the Succession Cause. Section 51(2)(h) provides: “ Every application for a grant of representation shall be made in such form as may be prescribed, signed by the applicant and witnessed in the prescribed manner. (2) An application shall include information as to – (h) 12. a full inventory of all the assets of the assets and liabilities of the deceased.” The administrators have a duty to file a true and accurate inventory of the assets and liabilities of the estate of the deceased. It is from that inventory that liabilities are settled and the court distributes the net intestate estate to the beneficiaries. The application is brought within the confines of the Law and should be granted. Conclusion 13. For the reasons stated in this ruling, Prayers 4 & 6 are granted as prayed. The respondents to comply with the order within fourteen (14) days from todays date. I make no orders as to costs. DATED, SIGNED AND DELIVERED AT KITUI THIS 27TH DAY OF JANUARY 2026 HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4235/eng@2026-01-27 4

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