B Chua, J.: In the Primary court of Same Safiniel Cleopa filed a suit in which she sought for an order of revocation of the appointment of John Kadeghe as Administrator of the estate of the late C husband of the applicant. The Primary Court dismissed the suit. The appellant appealed to the District Court without success and now appeals to this court.
From the mass of evidence adduced at the trial it was clearly established that the respondent John Kadeghe was the brother of the deceased and that he had been appointed administrator of the D estate with the unanimous consent of the other relatives of the deceased including the appellant. It was also established that he has administered the estate since the death of the deceased in 1972. The only question which was at issue was whether he had misapplied the estate or subjected it to loss or damage.
E The most important property that caused controversy was a motor vehicle of the deceased. According to the appellant, shortly before the deceased died he had a Land Rover which was in running order. The respondent sold the Land Rover for 2000 Shs. Out of the 2000 Shs. he deposited 1000 Shs in the accounts of the children of the deceased and used the balance for their welfare. The F sale of a Land Rover for 2000 Shs is a transaction that can hardly be believed especially when it is considered that the vehicle was in running order prior to the death of the deceased. Two thousand shillings could hardly have been sufficient to buy 4 tyres with their rims. What more evidence of G misapplying the estate did the Primary Court and the District Court require?
Next there were 4 heads of modern dairy cattle which were the property of the deceased. Since by the time the deceased died there is evidence that some of them were being milked they must have Hdelivered. The appellant claims for these cattle. The respondent replied that the cattle had died and that he sold the skins and from the money realized gave the appellant 75 Shs. One is bound to ask what disease killed all the 4 cattle? And what is even more pertinent is what happened to the I calves? The respondent failed to give a satisfactory answer.
Then the appellant referred to two houses built by the deceased at Rogai but alleged to have been A demolished by the respondent. Where did the building materials such as iron sheets go? Other properties of the deceased which appeared not to have been distributed by the respondent were a gun, a Singer sewing machine, a bed, 25 metres of chicken mesh, a sprinkler, plumbing parts, a hose B pipe and a jerry can. In my view the evidence on record showed on a balance of probability that the respondent had misapplied the estate. S.8 of the 5th Schedule of the Magistrates' Courts Act, provides:
An administrator who misapplies the estate of the deceased or subjects it to loss or damage shall be liable to C make good such loss or damage and an administrator who occasions loss to the estate by neglecting to get in any part of the property of the deceased shall be liable to make good the amount. D
The evidence on record shows that the respondent could have been sued under the above provision. Since the applicant had only sought for revocation the court had to decide whether there was good and sufficient cause to remake the appointment under S.2 (c) of the 5th Schedule of the E Magistrates' Courts Act. In my view misapplying the estate is a good and sufficient cause.
I accordingly allow the appeal with costs. The respondent should surrender any document evidencing his appointment immediately. The appellant and or her son who is now said to be of the age of majority are at liberty to apply in the Primary Court to be appointed as administrators of the F estate jointly or severally and are at liberty to sue the respondent for the value of property he has failed to account for. G
Appeal allowed H
A