REPUBLIC OF KENYA IN THE CHIEF MAGISTRATES COURT OF KENYA AT MOMBASA MAGISTRATES COURT FAMILY SUCCESSION CAUSE NO. E219 OF 2021 (CONSOLIDATED WITH SUCCESSION CAUSE NO. E023 OF 2023) IN THE MATTER OF THE ESTATE OF MAURICE MARTIN OTIENO (DECEASED) RULING 1. At the close of the cross-examination of Wilfred Odhiambo, learned counsel for the petitioner made an oral application inviting the Court to find that the witness had intermeddled with the estate of the deceased by disposing of motor vehicle registration number KBX 243W, an asset forming part of the estate. 2. Counsel submitted that the witness admitted that the motor vehicle was sold before any grant of representation had been issued authorising him to deal with the estate. It was further submitted that the witness admitted knowledge of the transaction, that the purchase price was deposited into his account, and that there existed documentary evidence in the form of the logbook and bank account details relating to the transaction. Counsel urged the Court to make an immediate finding that the witness had acted contrary to Section 45 of the Law of Succession Act. 3. The application was opposed. It was submitted that the issue forms part of the matters arising in the pending Summons for Confirmation of Grant and that the Court should determine the legality of the transaction after evaluating the entirety of the evidence before it. 4. I have considered the oral application, the response thereto, the evidence elicited during the cross-examination of Wilfred Odhiambo and the material presently on record. 5. The issue before the Court is not whether motor vehicle registration number KBX 243W belonged to the deceased's estate. From the pleadings and affidavits on record, there is material showing that the vehicle was listed among the assets of the estate, while another
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affidavit alleges that the vehicle was disposed of notwithstanding that the original logbook remained in the possession of one of the beneficiaries and annexes both the original logbook and an NTSA search evidencing a subsequent transfer. 6. Equally, there is evidence that one of the beneficiaries admits that various estate assets were sold after the deceased's demise to sustain the family, including motor vehicles. 7. The real question arising from the oral application is whether, on the admissions elicited during cross-examination, this Court should immediately make a finding that Wilfred Odhiambo intermeddled with the estate. 8. Section 45(1) of the Law of Succession Act prohibits any person, unless authorised by the Act, any other written law or a grant of representation, from taking possession of, disposing of or otherwise intermeddling with the free property of a deceased person. Whether a particular transaction amounts to intermeddling is, however, a question of fact to be determined upon evaluation of all the evidence placed before the Court. 9. The evidence elicited during cross-examination raises serious questions regarding the circumstances under which motor vehicle registration number KBX 243W was disposed of. In particular, the witness was extensively questioned on his capacity to dispose of the vehicle, the existence of the original logbook, the transfer of ownership, the account into which the purchase price was deposited and the utilisation of the proceeds. 10. Those questions are neither peripheral nor collateral. They go to the heart of the administration of the estate. Before a grant can be confirmed, the Court must be satisfied that the estate has been fully ascertained and that all estate assets, including assets disposed of after the deceased's death, have been properly accounted for. 11. The Court is, however, not persuaded that it would be proper to make a definitive finding of intermeddling
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at this interlocutory stage. Such a finding would necessarily determine one of the substantive issues arising from the evidence before the Court without the benefit of considering the evidence in its entirety and within the context of the pending Summons for Confirmation of Grant. 12. That is not to say that the issues raised are inconsequential. On the contrary, the evidence disclosed during cross-examination raises legitimate concerns requiring satisfactory explanation before the estate can be distributed. The Court must ultimately be satisfied: a. whether Wilfred Odhiambo had any legal authority to dispose of motor vehicle registration number KBX 243W; b. the circumstances under which the transfer of ownership was effected; c. the account into which the purchase price was deposited; d. whether the proceeds of sale were received on behalf of the estate; e. whether those proceeds have been fully accounted for; and f. whether any consequential orders ought to issue regarding the said proceeds before confirmation of the grant. 13. Those matters are directly connected to the Court's duty under the Law of Succession Act to ensure proper administration of the estate before confirmation of grant. 14. Accordingly, I decline to make a final finding of intermeddling at this stage. The issue shall be determined together with the pending Summons for Confirmation of Grant after considering the entirety of the evidence on record. 15. For the avoidance of doubt, the Court shall, in determining the Summons for Confirmation of Grant, specifically address the legality of the disposal of motor vehicle registration number KBX 243W, the capacity of Wilfred Odhiambo to participate in the transaction, and the accounting for the proceeds of sale.
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16. The oral application is therefore declined with no orders as to costs. It is so ordered. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT MOMBASA THIS 30TH JULY 2026. ............................................ EMILY M. MWAMUYE SENIOR RESIDENT MAGISTRATE
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