https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11872

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **FAMILY DIVISION** **PROBATE & ADMINISTRATION CAUSE E870 OF 2025** ***IN THE MATTER OF THE ESTATE OF WILLIAM OWINO OSEMBO (DECEASED)*** **ANTONY ADRIAN OWINO …………… APPLICANT** **VERSUS** **JUDY ONYANCHA .......….. 1ST PETITIONER/RESPONDENT** **TERRY NEEMA OWINO ……… 2ND PETITIONER/RESPONDENT** **RULING** 1. Before the Court is Petition for a Special Limited Grant dated 14 January 2026, filed by the Applicant, seeking a special limited grant to access funds from the bank accounts of the Deceased to cater for his educational expenses and upkeep. 2. The 1st Respondent filed a Replying Affidavit on 25 February 2026 in response to the application. 3. The Applicant is an adult son of the Deceased. He is currently enrolled as a second-year student at St. Mary's Medical Training College in Mumias, where he is pursuing a Diploma in Perioperative Theatre Technology. Through his Supporting Affidavit, the Applicant avers that the Deceased catered for his educational and upkeep needs during his lifetime. Following the demise of the Deceased on 26 July 2025 due to a pulmonary thrombo-embolism, his school fees have not been paid. 4. The Applicant seeks the court's authorization to withdraw funds from the Deceased's accounts held at NCBA Bank Kenya Ltd (Account Nos. 44000\*\*\*\*357 and/or 01000\*\*\*\*2937). Specifically, he prays for: 5. Kshs 141,000/= to settle his second academic year fees. 6. Kshs 50,000/= for the purchase of a laptop. 7. Kshs 100,000/= for his upkeep while at college. 8. The Applicant annexed a fee structure and a letter from the Principal Tutor confirming his enrolment and financial requirements. 9. The 1st Respondent is the sole spouse of the Deceased and the 1st Petitioner in the main succession cause. In her Replying Affidavit, she clarifies that she is not opposed in principle to the Court granting reasonable provision for the Applicant's college fees. However, she prays that such provision be subject to an equitable distribution of the available funds to accommodate the minor children of the Deceased who are also in school. 10. The 1st Respondent states that the Deceased left behind three minor children who entirely depended on him: (i) K.A, aged 16 years, a Form Four candidate at Buruburu Girls Secondary School, requiring Kshs 75,554/= for the year; (ii) J.O aged 15 years, a Form One student at Kisumu Boys' High School, requiring Kshs 53,554/= for the year; (iii) P.O.O, aged 12 years, a Grade 7 student at Prestigious Vineyard Junior School, requiring approximately Kshs 150,000/= for fees and miscellaneous expenses. 1. The 1st Respondent consequently requests the court to also grant a reasonable provision of Kshs 280,000/- to cater for the minor children's interim school fees pending the full administration of the estate. **Analysis & Determination** 1. It is not in dispute that the Applicant and the minors are children of the Deceased. Under Section 29 of the Law of Succession Act (Cap 160), a "dependant" includes the children of the deceased, whether or not they were maintained by the deceased prior to his death. As dependants, they have a statutory right to be reasonably provided for out of the deceased's net estate under Section 26. 2. Furthermore, Article 53(1)(b) of the Constitution guarantees every child the right to free and compulsory basic education. While the Applicant has attained the age of majority, he remains a student lacking an independent source of income and was a dependant of the deceased prior to his death. The estate is substantial, with an estimated gross asset value of Kshs 25,000,000/= against liabilities of Kshs 9,000,000/=, and is sufficiently liquid to cater for these urgent educational needs without suffering undue prejudice. 3. The overarching duty of this Court is to safeguard the estate and cater to the welfare of the dependants. Section 54 of the Act, read together with the Fifth Schedule, grants the Court the discretion to limit any grant of representation according to the circumstances of the case. Furthermore, under Section 47 of the Act and Rule 73 of the Probate and AdministrationRules, the Court wields inherent jurisdiction to make expedient orders necessary for the ends of justice. 4. The jurisprudence is well-settled regarding the release of funds for education prior to the confirmation of a Grant. In the persuasive and applicable precedent of ***In re Estate of SMM (Deceased) [2021] eKLR***, the Court correctly noted the necessity of issuing a special limited Grant to access a deceased's bank account strictly for the payment of school fees and maintenance of the minor dependants. The Court observed that the educational journey of a deceased's offspring ought not to be stalled by the often-protracted nature of succession litigation. I associate myself entirely with this reasoning. The preservation of the estate must not be utilized as a tool to oppress the very beneficiaries it is meant to serve. 5. The Applicant has successfully demonstrated a need for Kshs 141,000/= for his tuition fees, which is corroborated by the fee structure from St. Mary's Medical Training College. His request for a laptop and upkeep is reasonable given the technical nature of a Diploma in Perioperative Theatre Technology; However, it must be balanced against the needs of the other dependants. I find a combined sum of Kshs 150,000/= for the laptop and upkeep to be equitable and sufficient at this interim stage. 6. Similarly, the 1st Respondent has annexed authentic fee structures for the three minor children. The prayer for Kshs 280,000/= to secure their continuous education is justified, undisputed, and in the best interests of the minors. 7. Given the prevailing hostility and the lack of trust between the Applicant and the Respondents as deponed in the Affidavits, it is prudent that this Court exercises strict oversight over the disbursement of these funds. To ensure accountability and compliance with Section 58 of the Act—which mandates a minimum of two administrators where a continuing trust for minors arises—the Special Limited Grant shall be issued jointly. 8. In light of the foregoing, I find merit in the Applicant's Petition, as well as the 1st Respondent's equitable prayer. In the interest of justice and for purposes of expediency, I invoke the provisions of section 47 of the Act and hereby make the following orders: 9. The Applicant's Petition dated 14 January 2026 is hereby allowed in the following modified terms. 10. A Special Limited Grant is hereby issued jointly to the Applicant and the 1st Respondent limited solely to the collection and application of funds for the educational needs of the Deceased's children. 11. The Grantees are hereby authorized to access the Deceased's bank accounts held at NCBA Bank Kenya Ltd (Account No. 440007859357 and/or 0100012082937) to withdraw a total sum of Kshs 571,000/= 12. The withdrawn sum shall be strictly distributed and applied as follows: 13. Kshs 141,000/= shall be remitted directly to St. Mary's Medical Training College (KCB-Mumias Branch, Account No. 1104362937) for the Applicant's tuition fees. 14. Kshs 150,000/= shall be released directly to the Applicant for the purchase of a laptop and college upkeep. 15. A total of Kshs 280,000/= shall remitted directly to BuruBuru Girls Secondary School, Kisumu Boys High School and Prestigious Vineyard Junior School as per the respective annexed Fee Structures for the school fees and related educational expenses of the Kelsey Atieno, Johnfabrigas Odhiambo, and Paul Ozil Osembo. 16. **T**he Grantees shall file a joint Affidavit of Account in this Court within (45) days of accessing the funds, attaching the requisite banking slips and school receipts as proof of strict compliance with this order. 17. This Special Limited Grant shall automatically lapse upon the withdrawal and disbursement of the specified sums. 18. The costs of this Application shall be in the cause. **DATED AND DELIVERED AT NAIROBI THIS 30 DAY OF JULY 2026** **HELENE R. NAMISI** **JUDGE OF THE HIGH COURT** Delivered on virtual platform in the presence of: For the Applicant: Mr Namude For the Petitioners/Respondents: Mr Orina Court Assistant: Lucy Mwangi