[2018] KEHC 10237 (KLR)
The court held that the gratuity does not belong solely to the widows but must be shared among all six beneficiaries of the deceased, in accordance with Section 40 of the Law of Succession Act. The court found both widows' assumptions incorrect for failing to include the other survivors. The court also emphasized...
Source-derived case information.
- Citation
- [2018] KEHC 10237 (KLR)
- Parties
- Applicant: Esther Warukira Minjire Alias Esther Warukira Kiragu; Respondent: Franciah Njoki Mwangi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 573 of 2003
- Procedural Posture
- Succession Cause / Ruling on Application for Distribution of Gratuity
- Outcome
- Application for immediate distribution of gratuity as proposed by applicant declined; directions issued for further steps before distribution.
- Judges
- A Ali-Aroni
- Legal Topics
- Succession of Estates, Distribution of Gratuity, Beneficiary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esther Warukira Minjire Alias Esther Warukira Kiragu
Applicant
Franciah Njoki Mwangi
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Distribution of Gratuity
Legal Issues
- 1 Whether the deceased's gratuity should be distributed as proposed by the applicant.
- 2 Whether the gratuity should be shared only between the widows or among all beneficiaries.
- 3 Whether the applicant must account for previously withdrawn estate funds before distribution.
Ratio Decidendi
The court held that the gratuity does not belong solely to the widows but must be shared among all six beneficiaries of the deceased, in accordance with Section 40 of the Law of Succession Act. The court found both widows' assumptions incorrect for failing to include the other survivors. The court also emphasized that any estate funds previously withdrawn by the applicant must be accounted for, as per an earlier court order. The distribution of the gratuity will only proceed after the details and ages of all beneficiaries are filed and the applicant provides a statement of accounts. Only then will final orders for payment by the Public Trustee be issued.
Court Disposition
Application for immediate distribution of gratuity as proposed by applicant declined; directions issued for further steps before distribution.
Orders
- Details and ages of all six beneficiaries to be filed; each widow may file details of her own house.
- Applicant to file a statement of accounts as previously directed by the court.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY DIVISION
SUCCESSION CAUSE NO. 573 OF 2003
IN THE ESTATE OF GERALD KIRAGU GATHERU (DECEASED)
ESTHER WARUKIRA MINJIRE Alias
ESTHER WARUKIRA KIRAGU.................................APPLICANT
VERSUS
FRANCIAH NJOKI MWANGI................................RESPONDENT
R U L I N G
1. Before court is an application dated 23rd March 2017 brought by Esther Warukira against the Respondent Franciah Njoki Mwangi. The Applicant seeks to have the deceased gratuity in the sum of Kshs.882,892. 30 which amount is in the hands of the Public Trustee be split and paid to each of his widows. She also seeks to have sum of Kshs. 548,594. 90 be paid to her and for the Respondent to be paid the balance thereof of Kshs.274,297. 45.
2. The application is predicated on grounds that the Respondent has failed to accompany the Applicant to receive the cheque payable to the estate and secondly the Applicant is in urgent need of the money for payment of school fees for one of her children.
3. In a response by way of a replying affidavit dated 20th March, 2017 the Respondent states that the proposed mode of sharing the gratuity is unfair as the deceased left behind several debts, she paid the hospital bill amounting to Kshs.95,000/- and further the Applicant had expended funds belonging to the estate and in a ruling dated 3rd November, 2006 the court had directed that moneys that may have been withdrawn by Applicant from the estate be accounted for or recovered at distribution.
4. Having considered the application, the response and annextures therein the issue before court is whether or not to grant orders that the Public Trustee pays out the gratuity and whether to adopt the mode proposed of distribution or not.
5. In the process of writing this ruling I was privileged to read the ruling of the court that was delivered on the 3rd of January 2006 and noted the contents thereof where the court observed that the deceased left behind two widows and 4 children. Secondly and rightly so the court applied Section 40 of the LawofSuccession Act in arriving at the decision.
6. Noting that the deceased had left 6 survivors and in line with Section 40of theLaw of Succession Act both of the widows are wrong in assuming that the money belongs them as they do not mention any of the other survivors. The gratuity ought to be shared amongst all the beneficiaries of course, subject to any liabilities that may be proven.
7. The Respondent alluded to some expenses she incurred, made reference to receipts yet no such receipts were produced as annextures. Thirdly in line with the earlier ruling of the court the Applicant should and must account for monies used based on the earlier grant.
8. Consequently therefore, I direct and order:
(1) Details and ages of all the 6 beneficiaries be filed. Each widow may file details of her own house.
(2) The Applicant do file a statement of accounts as directed in the ruling of the court on 3rd January, 2006.
(3) Distribution will be done upon receipt of 1 and 2 above and final orders issued to the Public Trustee.
DATED, SIGNEDandDELIVEREDat NAIROBI this 22ND DAY OF November, 2018.
…………………………………….
ALI-ARONI
JUDGE