[2020] KEHC 9127 (KLR)
The court found that, since neither letters of administration nor probate had been issued, there was no legal basis to grant the applicant access or control over the deceased's bank accounts or rent collection. However, the court recognized that the deceased's daughter, Amy, was a dependant entitled to maintenance...
Source-derived case information.
- Citation
- [2020] KEHC 9127 (KLR)
- Parties
- Applicant: Anne Wangui Mutua; Respondent: Gabriel Nzioki Mutinda
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1360 of 2019
- Procedural Posture
- Succession Cause / Ruling on Interlocutory Application for Access to Estate Funds and Rent Pending Grant of Letters of Administration
- Outcome
- Partly allowed; prayers for access and control of accounts and rent denied, but interim provision for school fees and maintenance for the deceased's daughter granted.
- Judges
- A Ali-Aroni
- Legal Topics
- Succession of Estates, Interlocutory Relief, Maintenance of Dependants, Administration of Estates
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anne Wangui Mutua
Applicant
Gabriel Nzioki Mutinda
Respondent
Procedural Posture
Succession Cause / Ruling on Interlocutory Application for Access to Estate Funds and Rent Pending Grant of Letters of Administration
Legal Issues
- 1 Whether the applicant, as estranged wife and mother of the deceased's children, is entitled to access and control of the deceased's bank accounts prior to grant of letters of administration.
- 2 Whether the applicant can be allowed to withdraw funds from the deceased's estate for the maintenance and education of a dependant child before appointment of an administrator or executor.
- 3 Whether rent collected from the deceased's property should be paid out to the applicant and children before grant of representation.
Ratio Decidendi
The court found that, since neither letters of administration nor probate had been issued, there was no legal basis to grant the applicant access or control over the deceased's bank accounts or rent collection. However, the court recognized that the deceased's daughter, Amy, was a dependant entitled to maintenance and education under Section 29 of the Law of Succession Act. The court exercised its discretion to allow payment of school fees, travel costs for one trip, yearly medical cover, shopping, and a three-month allowance for Amy from the estate, to be paid directly to the University of the Witwatersrand and for her benefit. The court directed the relevant banks to release account...
Court Disposition
Partly allowed; prayers for access and control of accounts and rent denied, but interim provision for school fees and maintenance for the deceased's daughter granted.
Orders
- All school fees (arrears 2019 and current 2020), travel costs for one trip, yearly medical cover, shopping, and allowance for three months for Amy Mumbua to be paid from the estate of the deceased.
- School fees to be paid directly to the University of the Witwatersrand, Johannesburg.
Full Case Text
Judgment text and source record
52 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT NAIROBI
(FAMILY DIVISION)
SUCCESSION CAUSE NO 1360 OF 2019
IN THE MATTER OF THE ESTATE JOHN MUTIO MUTUA (DECEASED)
ANNE WANGUI MUTUA..................................................APPLICANT
R U L I N G
1. This matter revolves around the estate of John Mutio Mutua (deceased) who died on the 29th of April 2019.
2. There appears to be a dispute on how to manage the estate as between the estranged wife of the deceased Anne Wangui Mutua (‘Anne’) and one Gabriel Nzioki Mutinda who claims to be an executor of the deceased Will. From the record, there was a divorce cause between Anne and the deceased awaiting judgement before the deceased died following a lengthy separation.
3. Anne and the deceased were married at St. Thomas Aquinas Church in Nairobi on the 4th of December, 1993 and the union has two grown up children:
Jeff Mutua a son aged 24 years &
Amy Mumbua a daughter aged 21 years
4. The applicant and her son moved the court for grant of letters of administration on the 24th of October 2019, a grant is yet to issue. There is also a claim that the deceased left behind a Will, which was known to the applicant even as she petitioned the court. Probate is yet to be filed.
5. The issue of the Will is not before this court. In issue for now is the application by Anne dated 9th December 2019 seeking for the following prayers:
i. (Spent)
ii. That an order do issue directing the Branch Manager; Barclays Ban- Barclays Plaza, Standard Chartered Bank- Yaya Centre Branch and Co-operative Bank – Head Office to avail to this honourable court the credit balance for the deceased’s bank accounts (John Mutio Mutua – ID No. xxxxxxx).
iii. That upon granting prayer No. ii above, the 1st Petitioner ANNE WANGUI MUTUA herein be granted access and control to the following Bank accounts in the name of the deceased (JOHN MUTIO MUTUA-ID No.xxxxxxx): -
a. Barclays Bank Premier Banking Account No.xxxxxx held at Barclays Plaza Branch.
b. Standard Chartered Gold Visa Account No.xxxxxx held at Yaya Centre Branch.
c. Standard Chartered Priority Account Number No.xxxxxxxx held at Yaya Centre Branch.
d. Cooperative Bank Account
iv. That an order be made by this honourable court allowing the 1st Petitioner herein: ANNE WANGUI MUTUA to withdraw from the deceased Bank Accounts namely: Barclays, Standard Chartered and Cooperative Bank, such sums of money to the tune of Kshs.3,688,388. 30 to cater for the deceased daughter’s education at the University of the Witwatersrand Johannesburg and made up as follows:-
a. Outstanding fees balance for the year 2019 of R. 64,720. 83 X 10 (Kshs.647,208. 30/=).
b. School fees for the year 2020 – R.249,650. 00X10 (Kshs.2,496,500. 00/=).
c. Medical cover (yearly) – R. 5,268. 00 X10 (Kshs.52,680/=).
d. Travelling costs for two trips in the year 2020 to and from Johannesburg at – USD. 1620X 100 (Kshs.162,000/=).
e. Allowance for the year 2020 –R.24,000x 10 (Kshs.240,000/=).
f. School shopping for the 1st semester running from January to June 2020 – R.4,500x 10 (Kshs.45,000/=).
g. School shopping for the 2nd semester running from July – December 2020 R.4,500 x 10 (Kshs.45,000/=). Which fees are to be paid in favour of Amy Mutua, student Number 1880920 in the account provided by the institution.
v. That all the rent that has been collected from the property known as NEW KITISIRU L.R. No. KIT/101/209F by KAMAU KINGA trading as M/s KAMAU KINGA & CO. ADVOCATES be immediately paid out to ANNE WANGUI MUTUA and all future rent be collected for the benefit of herself and the Deceased’s children.
vi. That the said KAMAU KINGA trading as M/s KAMAU KINGA & Co. Advocates be ordered to give a full account of all the rent collected from the property known as NEW KITISIRU L.R. No. KIT/101/209F.
6. The letters of administration is yet to issue as necessary documents sought for by the court have not been availed and therefore the estate has no administrators.
Equally the executor of the alleged Will is yet to move the court for probate and therefore there is no executor duly appointed.
7. Therefore, the court has no basis upon which to grant prayers 2, 3, 5, and 6 in favour of the applicant or any other person for the reasons given above. The prayers are therefore denied.
8. As for prayer 4, there is a daughter, Amy in school, a dependant of the deceased and though the application is not procedural she has a right to seek for school fees and maintenance under Section 29 of the Law of Succession Act and I am prepared to consider the same since even under the alleged Will all cash is bequeathed the said daughter and her brother. Secondly, I do not sense any serious opposition to payment of the school fees and upkeep. To grant the prayer in any event, would be in the interest of justice in the circumstances of the case.
9. Therefore, this court now directs and order that all school fees (arrears 2019 and current 2020), travel costs for 1 trip, yearly medical cover, shopping & Allowance for 3 months for Amy Mumbuabe paid from estate of the deceased.
School fees be paid directly to the University of the Witwatersrand Johannesburg.
10. In order to achieve (9) above the managers of the banks herein below listed will forthwith release the most recent statements of accounts reflected below to the court only once pending further orders through Gabriel Nzioki Mutinda
i. Barclays Bank Premier Banking Account No.xxxxx,
Barclays Plaza Branch.
ii. Standard Chartered Gold Visa Account No.xxxxxxxxxxx,
Yaya Centre Branch.
iii. Standard Chartered Priority Account Number No.xxxxxxxxxx
Yaya Centre.
iv. Cooperative Bank Account
11. No order as to costs.
12. Mention for further orders on 20th January, 2020.
Dated and Delivered in Nairobi on this16TH day of January, 2020.
.....................
ALI-ARONI
JUDGE