[2018] KEHC 8772 (KLR)
The court found that the applicant had complied with the previous directions by providing sufficient evidence regarding the needs of the children, the educational institutions attended, the immediate and future fees required, and the current balance of the trust account. The court was satisfied with the applicant's...
Source-derived case information.
- Citation
- [2018] KEHC 8772 (KLR)
- Parties
- Applicant: E Z B; Respondent: P M N
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Divorce Cause 140 of 2008
- Procedural Posture
- Divorce Cause / Ruling on Application for Withdrawal of Trust Funds
- Outcome
- application granted
- Judges
- BA Mitullah
- Legal Topics
- Child Maintenance, Trust Funds, Education Expenses, Parental Responsibility
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
E Z B
Applicant
P M N
Respondent
Procedural Posture
Divorce Cause / Ruling on Application for Withdrawal of Trust Funds
Legal Issues
- 1 Whether the applicant should be granted leave to withdraw monies held in trust for the benefit of the children of the marriage.
- 2 Whether the funds will be used solely for the education and betterment of the children.
- 3 Whether the applicant has provided sufficient evidence of the children's needs and the status of the trust account.
Ratio Decidendi
The court found that the applicant had complied with the previous directions by providing sufficient evidence regarding the needs of the children, the educational institutions attended, the immediate and future fees required, and the current balance of the trust account. The court was satisfied with the applicant's undertaking to use the funds solely for the children's education and noted the son's consent to the release of funds, as he had attained majority age. Given the applicant's history of sole responsibility for the children since 2010, the court was convinced that the funds would be used appropriately. Accordingly, the court granted the application and ordered the release of all...
Court Disposition
application granted
Orders
- All funds held in Barclays Bank Account No 20*****345 at Barclays Bank Enterprise Road Branch to be paid to the applicant E Z B within 30 days of service of the order upon the bank.
- Such funds to be used for the education and betterment of the children of the family.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
DIVORCE CAUSE NO. 140 OF 2008
E Z B................................PETITIONER/APPLICANT
-VERSUS-
P M N..................................................RESPONDENT
RULING
1. This is the second time the Applicant’s Application comes before the Court. The Court previously ruled that there was insufficient evidence before it to grant the Orders sought. In brief the Applicant is seeking an order granting her leave to withdraw the monies held on trust for the benefit of the two children of the marriage pursuant to the Judgment of Hon Justice Nyambuye J of 21st May 2010.
2. In its previous Ruling this Court said:
1. “Given the parlous state of this Application the Court would be justified in dismissing it. However, given that this is a family matter this Court resolves to allow the Applicant a further opportunity to place before the Court the evidence that will enable it to reach a decision in particular:
(1) The needs of each child separately.
(2) The name & address of the education institution each child attends or intends to attend.
(3) The fee that is due immediately.
(4) The fee that will become due and the dates on which that will be payable.
(5) The amount of funds held in the Bank account.
2. I therefore order that the Applicant be and is hereby granted leave to file and serve further evidence as necessary to support the Application within 14 days.
3. The Applicant has since, on 27th April 2017 filed a Further Affidavit. In it she clarifies a number of points and provides supporting evidence for others.
4. Firstly, the Bank Account has been identified. It is Account No 20*****345 held at Barclays Bank Enterprise Road Branch. It has also transpired that rather than holding the sum of Kshs.1,000,000 as expected under the Order of May 2010, in fact there was only about KShs.400,000 deposited and now that has grown to KShs414,439. 85. In view of the amount there is a limit to how far it will stretch.
5. The needs of both Children is set out the older child B M is embarking on the remainder of a BA in Leadership and Management by Distance learning from the University of [particulars withheld] and Exhibit EB-4 confirms he is so enrolled. There are also the needs of the younger child to have her High School fees paid to enable her to complete her studies.
6. At paragraph 17 the Applicant states “THAT the money held in the trust account is enough to pay University Fees for my son for the two years and hence enable me [to] work towards raising my daughter’s fees”. And paragraph 18 she says “THAT my son has now attained the age of majority and has consented to the release of the funds held in the trust account”. His Affidavit signifying his consent is duly exhibited as EB-9. The Applicant undertakes that she will use all of the funds for the education of the Children only.
7. In view of the history of this case and in particular that it has been the Mother who has been solely responsible for raising the Children since 2010, the Court is satisfied that she will comply with the undertaking she gives.
8. In light of the foregoing it is ordered and directed that all the funds held in Barclays Bank Account No 20*****345 held at Barclays Bank Enterprise Road Branch be paid to the Applicant E Z B within 30 days of service of this Order upon the Bank. Such funds to be used for the education and betterment of the Children of the Family.
Order accordingly,
FARAH S. M. AMIN
JUDGE
Delivered dated and signed on the 25th day of January 2018
In the Presence of:
Court Assistant: Mr Patrick Mwangi
For the Applicant: Mr Anyona Holding Brief for Mrs Muriuki
For the Respondent No Appearance