[2022] KEHC 12127 (KLR)
The court found that although the will of the deceased provides for an annual withdrawal of Kshs 1,000,000 in favour of the minor and another child, the funds are indicated for use in the deceased's business affairs and not expressly for school fees. Since the administrator had filed grounds of opposition and the...
Source-derived case information.
- Citation
- [2022] KEHC 12127 (KLR)
- Parties
- Applicant: Beatrice Nduta Waruiru (Suing on Behalf and as Next Friend of the Minor Child Mccain Macharia); Respondent: Samuel Mwangi Gathiga
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 10 of 2020
- Procedural Posture
- Succession Cause / Interlocutory Application for Interim Provision Pending Hearing
- Outcome
- Interim orders declined; parties to proceed with filing submissions.
- Judges
- FN Muchemi
- Legal Topics
- Child Maintenance, Interim Relief, Provision for Minors
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Beatrice Nduta Waruiru (Suing on Behalf and as Next Friend of the Minor Child Mccain Macharia)
Applicant
Samuel Mwangi Gathiga
Respondent
Procedural Posture
Succession Cause / Interlocutory Application for Interim Provision Pending Hearing
Legal Issues
- 1 Whether the applicant is entitled to interim provision for school fees for the minor pending determination of the main application.
- 2 Whether the will of the deceased provides for annual withdrawal of funds for the benefit of the minor.
- 3 Whether interim orders should be granted before hearing the administrator's opposition.
Ratio Decidendi
The court found that although the will of the deceased provides for an annual withdrawal of Kshs 1,000,000 in favour of the minor and another child, the funds are indicated for use in the deceased's business affairs and not expressly for school fees. Since the administrator had filed grounds of opposition and the matter required full hearing of all parties, it would not be just to grant interim orders at this stage. The interests of justice require that the application be heard inter partes before any provision is made. Accordingly, the court declined to grant the interim orders sought by the applicant and directed parties to proceed with filing submissions as previously ordered.
Court Disposition
Interim orders declined; parties to proceed with filing submissions.
Orders
- No interim orders granted in terms of prayer No 3 of the application dated December 10, 2021.
- Parties to proceed with filing submissions as previously directed.
Full Case Text
Judgment text and source record
22 paragraphs
In re Estate of Boniface Gathenge Macharia (Deceased) (Succession Cause 10 of 2020) [2022] KEHC 12127 (KLR) (5 May 2022) (Ruling)
Neutral citation: [2022] KEHC 12127 (KLR)
Republic of Kenya
In the High Court at Nyeri
Succession Cause 10 of 2020
FN Muchemi, J
May 5, 2022
IN THE MATTER OF THE ESTATE OF BONIFACE GATHENGE MACHARIA (DECEASED)
Between
Beatrice Nduta Waruiru (Suing on Behalf and as Next Friend of the Minor Child Mccain Macharia)
Applicant
and
Samuel Mwangi Gathiga
Administrator
Ruling
Brief facts 1. This matter came up for mention to confirm compliance in filing submissions and for the applicant to inform the court whether she had made up her mind on withdrawing her application dated December 10, 2021. It was reported during the mention that the applicant had approached the administrator Mr Gathiga Mwangi Advocate on the issue of provision of school fees for her child and on her intention to withdraw the case. The applicant said through her counsel that she was not given audience by the administrator.
2. Mr Nyandieka for the applicant informed this court that the child of the deceased with the applicant named as M M has been sent away from school for non-payment of school fees. The counsel asked the court to grant orders in terms of prayer No 3 of the application dated December 10, 2022 pending the hearing and determination of the application arguing that the matter was termed as extremely urgent.
3. Ms Muthui who was holding brief for the administrator said grounds of opposition had already been filed in respect of the application and that the administrator was opposed to any sort of provision at this stage. Mr Nyandieka further argued that since there was no dispute to the issue of the deceased being the father of the minor and that the deceased has provided for the minor to the tune of Kshs 1,000,000/= to be withdrawn annually from his account, in the will, the interim provision ought to be granted.
4. I have perused the will of the deceased and note that paragraph 17 provides for withdrawal of Kshs 1,000,000/= on a yearly basis in favour of the minor named M M and another by the name of Dorcas Nduta Gathege whom must be the children of the applicant. The amount is indicated for the purpose of the funds being used “exclusively for the deceased’s business affairs” with this rider that does not directly provide that the amount be used for school fees, it is in the interests of justice that all the parties herein be heard in this application. The administrator has already filed grounds of opposition on May 4, 2022 which require to be considered before any orders may be given.
5. For the foregoing reasons, I decline to grant any interim orders in terms of prayer No 3. Parties had already taken directions to file submissions and should proceed as such.
6. It is hereby so ordered.
DELIVERED, DATED AND SIGNED AT NYERI THIS 5THDAY OF MAY, 2022. F MUCHEMIJUDGERuling delivered through videolink this 5thday of May, 2022.