[2020] KEHC 2680 (KLR)
Although the judgment directed that the net estate should go absolutely to the protestor, the confirmed grant was issued jointly to both the petitioner and protestor, and the estate includes a minor beneficiary. Under the Law of Succession Act, a grant cannot be made to a sole administrator where a minor is...
Source-derived case information.
- Citation
- [2020] KEHC 2680 (KLR)
- Parties
- Petitioner: Peter Njoroge Kahiro; Protestor: Lucy Wangari Maina
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1193 of 2013
- Procedural Posture
- Succession Cause / Ruling on Summons to Compel Release of Estate Funds
- Outcome
- Application dismissed.
- Judges
- K Kimondo
- Legal Topics
- Administration of Estates, Confirmation of Grant, Trust for Minor, Distribution of Estate Funds
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Peter Njoroge Kahiro
Petitioner
Lucy Wangari Maina
Protestor
Procedural Posture
Succession Cause / Ruling on Summons to Compel Release of Estate Funds
Legal Issues
- 1 Whether the Public Trustee should be compelled to release the estate funds solely to the protestor or into a joint account of the two administrators.
- 2 Whether the confirmed grant and the Law of Succession Act permit release of funds to a sole administrator where a minor is a beneficiary.
- 3 Whether a continuing trust exists for the benefit of the minor child under the Law of Succession Act.
Ratio Decidendi
Although the judgment directed that the net estate should go absolutely to the protestor, the confirmed grant was issued jointly to both the petitioner and protestor, and the estate includes a minor beneficiary. Under the Law of Succession Act, a grant cannot be made to a sole administrator where a minor is involved, and a continuing trust arises for the minor's benefit. The Public Trustee, not being an administrator, is bound to release the funds only to the joint administrators, not to one party alone. Once the funds are received by the joint administrators, they must comply with the schedule in the confirmed grant and release the sums wholly to the protestor as per the judgment. The...
Court Disposition
Application dismissed.
Orders
- The protestor's summons dated 8th June 2018 is disallowed.
- There shall be no order as to costs.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MURANG’A
SUCCESSION CAUSE NO. 1193 OF 2013
RE ESTATE OF BENSON KAHIRO NJOROGE (DECEASED)
PETER NJOROGE KAHIRO..........................................PETITIONER
VERSUS
LUCY WANGARI MAINA..................................................PROTESTOR
RULING
1. The sole issue is whether the Public Trustee should be compelled to release the funds which are due to the estate solely to the protestor; or, into a joint account of the two administrators.
2. By a judgment delivered on 24th March 2017, the court (Waweru J) ordered:
I direct that the net estate of the deceased (which appears to consist only of some money) shall go absolutely to the 2nd administrator, Lucy Wangari Maina so that she is able to take care of herself and her child, Favour Ajendia Wambui Kahiro. [Underlining added]
3. The deceased was a police officer. His gratuity of about Kshs 602,640 was released to the Public Trustee on 31st March 2014. The Public Trustee insists that the funds can only be transmitted into the joint account of the petitioner and protestor.
4. The protestor will hear none of it. She has presented a summons dated 8th June 2018 to compel the Public Trustee to comply with the judgment and release the sums exclusively to her.
5. The Public Trustees demurs. His argument is that there is a continuing trust in favour of the child; and, that the funds must be administered by both administrators.
6. The parties filed submissions. Those by the protestor are dated 11th September 2020; those by the petitioner were filed on 21st September 2020.
7. On 24th September 2020, learned counsel for both parties informed the court that they were relying wholly on their written submissions.
8. The applicant’s summons fails for five reasons. Firstly, it is true that the court ordered that the net estate of the deceased shall go absolutely to the 2nd administrator, Lucy Wangari Maina. However, the grant was confirmed jointly in the names of the administrator and the protestor. Doubt is removed completely by the certificate of confirmation of grant dated 29th March 2017. So much so that although the funds were to gowholly to the protestor, it did not make her the soleadministrator.
9. Secondly, there is a minor child of the deceased born on 18th November 2008. Under the Law of Succession Act, the grant could not be made to a sole applicant.
10. Thirdly, the judgment was emphatic that the funds were to be released to the protestor“so that she is able to take care of herself and her child, Favour Ajendia Wambui Kahiro”. From that wording, it is obvious that a continuing trust arose as contemplated under section 41 as read with section 71 (2) of the Law of Succession Act.
11. Fourthly, it is material that the Public Trustee is not the administrator of the estate. The confirmed joint administrators, in whose names the property of the deceased vests, remain the petitioner and protestor irrespective of any bad blood between them. The Public Trustee cannot release the funds to one of them particularly in view of the continuing trust.
12. Fifthly, when those funds get into the hands of the two, they must comply with the schedule in the confirmed grant and release the sums wholly to the protestor. I can clearly see the misgivings by the protestor because she did not want to share the funds with the petitioner, the father of the deceased. And no one is asking her to do so now in view of the express wording of the judgment.
13. For all those reasons, the protestor’s summons dated 8th June 2018 is without merit and is disallowed. There shall be no order on costs.
It is so ordered.
DATED, SIGNED and DELIVERED at MURANG’Athis 6th day of October 2020.
KANYI KIMONDO
JUDGE
Ruling read in open court in the presence of:
Mr. Mwangi for the protestor/applicant instructed by Kirubi, Mwangi Ben & Co. Advocates.
No appearance by counsel for the Public Trustee.
Ms. Dorcas Waichuhi & Ms. Susan Waiganjo, Court Assistants.