https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10419

In re Estate of Wakanene (Deceased) (Probate & Administration E156 of 2025) [2026] KEHC 10419 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEHC 10419 (KLR) Republic of Kenya In the High Court at Nakuru Probate & Administration E156 of 2025 AM Hassan, J July 9, 2026 Ruling A. BRIEFFACTS 1.The Administrators/Applicants moved this court by way of a Chamber Summons Application dated 11th June 2026, brought under Sections 26, 27, 28 and 29 of the Law of Succession Act, Cap 160 Laws of Kenya and all other enabling provisions of the law, seeking the following orders:1.Spent.2.Spent.3.That the Manager, Standard Chartered Bank, Moi Avenue Branch, be ordered to release Kenya Shillings Five Million (Kshs.5,000,000/=) from Account Numbers 0100300143400 and 0151200143200 in the names of Eliud Wamathai Wakanene to the Advocates for the Administrators/Applicants for purposes of clearing hospital bills for the beneficiaries namely, James Muturi Mathaiand Rose Wangari Mathaiat Decision Point Wellness Centre and Kenyatta University Teaching and Referral Hospital respectively to facilitate their release from the said facilities.4.That the court be pleased to order the Manager, Standard Chartered Bank, Moi Avenue Branch, Nairobi to release Kenya Shillings One Million (Kshs.1,000,000/=) from Account Numbers 0100300143400 and 0151200143200 in the names of Eliud Wamathai Wakanene to the firm of Raydon Mwangi & Associates Advocates being interim legal fees for this succession cause.5.That the court do order the Manager, Standard Chartered Bank, Moi Avenue Branch, Nairobi to release to the Administrators herein monthly maintenance for James Muturi Mathaiand Rose Wangari Mathaiat Kenya Shillings One Hundred and Fifty Thousand (Kshs.150,000/=) each from Account Numbers 0100300143400 and 0151200143200 in the names of Eliud Wamathai Wakanene until the grant herein is confirmed. 2.The Application is supported by the Affidavit sworn by the two Administrators, Allan Wakanene Mathai and Charles Ndumia Wahome. The Applicants contend that the named beneficiaries are in urgent need of medical treatment and upkeep, that legal representation is necessary for the proper administration of the estate, and that interim provision ought to be made from the estate pending confirmation of grant. 3.I have considered the application, the supporting affidavit, the annexures thereto, and the applicable law. 4.The issues arising for determination are:i.Whether this court should authorize the release of estate funds for payment of hospital expenses incurred by James Muturi Mathai and Rose Wangari Mathai, who are the beneficiaries of the estate.ii.Whether the Applicants have established sufficient grounds for release of Kshs.1,000,000/= from the estate towards interim legal fees incurred in the administration of the estate.iii.Whether James Muturi Mathai and Rose Wangari Mathai are entitled to interim maintenance pending confirmation of grant and, if so, the appropriate quantum. B. Applicable law 5.Section 26 of the Law of Succession Act provides:“Where a person dies after the commencement of this Act, and so far as succession to his property is governed by this Act, then on the application by or on behalf of a dependant, the court may, if it is of the opinion that the disposition of the deceased's estate effected by his will, or the law relating to intestacy, or the combination of the will and that law, is not such as to make reasonable provision for that dependant, order that such reasonable provision as the court thinks fit shall be made for that dependant out of the deceased's net estate.” 6.Section 27 of the Law of Succession Act provides:“In making provision for a dependant under this part, the court shall have complete discretion to order a specific share of the estate to be given to the dependant, or to make such other provision for him by way of periodical payments or a lump sum, and to impose such conditions, as it thinks fit.” 7.Section 28 of the Law of Succession Act requires the court, in exercising its discretion under Section 26, to consider inter alia the nature and amount of the deceased’s property, the existing and future means and needs of the dependant, the circumstances of the other beneficiaries, and the general circumstances of the case. 8.Section 29(a) of the Law of Succession Act defines dependants to include:“the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death.” 9.Further, Section 47 of the Law of Succession Act grants this court jurisdiction to entertain any application and determine any dispute under the Act and to make such orders as may be expedient. Rule 73 of the Probate and Administration Rules preserves the inherent powers of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. 10.In Rono v Rono & Another [2005] KECA 326 (KLR), the Court of Appeal held that the discretion conferred upon the court under Sections 26, 27 and 28 of the Law of Succession Act is wide but must be exercised judiciously and after taking into account all the circumstances of the particular case. 11.Likewise, in I n r e Estat e o f Danie l Mulw a Kavithi (Deceased) (2019) KEHC 1686 (KLR) the court held that once a claimant is shown to be a dependant, the court may make provision either by way of a lump sum payment or periodic payments after considering the factors prescribed under Section 28 of the Act. 12.Similarly, in In re Estate of Gachoki Kabwai (Deceased) (2019)eKLR , the court reiterated that the purpose of Sections 26, 27 and 28 of the Act is to ensure that dependants are not left without reasonable provision while at the same time safeguarding the interests of the estate and the other beneficiaries. 13.The court must therefore balance the need to preserve the estate for the benefit of all beneficiaries with the statutory obligation to make reasonable provision for deserving dependants. C. Analysis Of The Issues For Determination Issue No. 1: Whether Funds Should Be Released For Payment Of Hospital Bills 14.The Applicants seek release of Kshs.5,000,000/= from the estate for purposes of settling hospital bills incurred by James Muturi Mathai and Rose Wangari Mathai, who are beneficiaries of the estate. 15.It is not disputed that Rose Wangari Mathai is a daughter of the deceased while James Muturi Mathai is a son of the deceased. By operation of Section 29(a) of the Law of Succession Act, both qualify as dependants of the deceased's estate as a matter of law. 16.The material placed before the court demonstrates that Rose Wangari Mathai is admitted at Kenyatta University Teaching and Referral Hospital while James Muturi Mathai is receiving treatment at Decision Point Wellness Centre. It is further evident that substantial medical bills have accrued and require settlement. 17.In considering this prayer, the court is guided by Section 28(c) of the Law of Succession Act which requires the court to take into account the existing and future means and needs of a dependant. Medical treatment constitutes a fundamental necessity and is one of the clearest manifestations of a dependant's immediate needs. 18.Applying the principles set out in Rono v Rono & Another (2005) eKLR and In re Estate of Daniel Mulwa Kavithi (Deceased) (2019) eKLR, the court is satisfied that provision towards settlement of genuine hospital expenses falls squarely within the concept of reasonable provision contemplated under Section 26 of the Act. 19.Nevertheless, the court must equally safeguard the estate. Under Sections 79, 82 and 83 of the Law of Succession Act, personal representatives hold and administer estate property in trust for all beneficiaries and are under a duty to preserve and account for the estate. 20.The court is therefore not persuaded that the entire sum sought should be released to Counsel for the Administrators/Applicants. The interests of accountability, transparency and preservation of estate assets would be better served through direct settlement of the verified hospital bills by the bank to the respective medical institutions. 21.Consequently, while the court finds merit in the request for payment of the hospital bills, Prayer No. 3, cannot succeed in the form sought. 22.The court therefore directs that upon presentation of certified invoices from the health facilities, by the Administrators/Applicants, Standard Chartered Bank, Moi Avenue Branch, shall settle directly the verified hospital bills due to Kenyatta University Teaching and Referral Hospital and Decision Point Wellness Centre in respect of Rose Wangari Mathai and James Muturi Mathai respectively. Issue No. 2: Whether Interim Legal Fees Should Be Released From The Estate 23.The Applicants seek release of Kshs.1,000,000/= to the firm of Raydon Mwangi & Associates Advocates as interim legal fees. 24.Under Section 79 of the Law of Succession Act, the property of the deceased vests in the personal representatives. Sections 82 and 83 of the Act confer upon administrators’ powers and duties necessary for the proper administration, preservation and management of the estate. 25.The administration of an estate inevitably involves legal processes requiring professional legal representation. Reasonable legal expenses incurred in the administration and preservation of the estate constitute proper expenses chargeable to the estate. 26.The proceedings herein remain active and ongoing. The administrators continue to discharge their statutory obligations and require legal representation for the effective conduct of the succession cause. 27.The court is satisfied that the request for interim legal fees is justified and that the sum sought is reasonable at this stage, subject to subsequent accounting and scrutiny in the course of administration of the estate. 28.Prayer No. 4, is therefore merited. Issue No. 3: Whether Interim Maintenance Should Be Granted To The Dependants 29.The Applicants seek monthly maintenance of Kshs.150,000/= for each of the two dependants pending confirmation of grant. 30.As already found, Rose Wangari Mathai and James Muturi Mathai are dependants within the meaning of Section 29(a) of the Law of Succession Act. 31.Section 27 of the Act expressly empowers the court to make provision for dependants by way of periodical payments where circumstances warrant such an order. 32.The evidence before the court demonstrates that the said dependants presently require support and upkeep pending confirmation of grant. The court is therefore satisfied that interim maintenance is necessary. 33.In determining the appropriate amount, the court has considered the factors stipulated under Section 28 of the Act, particularly the needs of the dependants, the nature of the estate, the interests of the other beneficiaries, and the obligation to preserve the estate pending confirmation of grant. 34.While the court finds merit in the request for maintenance, it is not persuaded that Kshs.150,000/= per month for each dependant is justified at this interlocutory stage. 35.Balancing all competing interests and taking into account the circumstances disclosed in the application, the court finds that a monthly sum of Kshs.50,000/= for each dependant constitutes reasonable provision within the meaning of Sections 26, 27 and 28 of the Law of Succession Act pending confirmation of grant. D. Disposition 5.In the result, the Chamber Summons Application dated 11th June 2026, succeeds in part and the court makes the following orders:I.Prayer No. 3 is declined in the form sought. In lieu thereof, Standard Chartered Bank, Moi Avenue Branch, Nairobi shall, upon presentation of certified hospital invoices by the administrators, release directly to Decision Point Wellness Centre and Kenyatta University Teaching and Referral Hospital the sums necessary to settle the verified outstanding hospital bills relating to James Muturi Mathai and Rose Wangari Mathai respectively.II.Prayer No. 4 is hereby allowed. Standard Chartered Bank, Moi Avenue Branch, Nairobi shall release Kshs.1,000,000/= from Account Numbers 0100300143400 and 0151200143200 held in the name of the deceased to the firm of Raydon Mwangi & Associates Advocates as interim legal fees in this succession cause.III.Prayer No. 5 is allowed only to the extent that Standard Chartered Bank, Moi Avenue Branch, Nairobi shall release Kshs.50,000/= per month to James Muturi Mathai and Kshs.50,000/= per month to Rose Wangari Mathai as interim maintenance pending confirmation of grant or until further orders of this court.IV.The administrators shall render a full account of all monies released pursuant to these orders at the time of confirmation of grant or at such other time as the court may direct.V.Costs of the application shall be in the cause.It is so ordered. SIGNED BY/FOR:THE JUDICIARY OF KENYAHON. JUSTICE ABDI M. HASSANNAKURU HIGH COURT