[2022] KEHC 10205 (KLR)

In re Estate of Grace Wambui Kimuyu (Deceased) (Succession Cause E896 of 2020) [2022] KEHC 10205 (KLR) (Family) (10 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10205 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause E896 of 2020

MA Odero, J

June 10, 2022

Between

Trixie Syata Syamba

Applicant

and

Nicholas Kester Syamba

1st Respondent

Benson Wangurumo Njonjo

2nd Respondent

Chris Maruti Tsyamba

3rd Respondent

Ruling

1. Before this Court for determination is a summons dated July 2, 2021 filed by Trixie Syata Syamba seeking for orders-1. That no grant for representation to the estate of the above named Grace Wambui Kimuyu (Deceased) having been confirmed, such reasonable provision be made for the Applicant as a dependant of the deceased out of her net estate as the court thinks fit.2. That the costs of this application be provided for.”

2. The summons which was premised upon section 26 of the Law of Succession Act and was supported by the Affidavit dated July 9, 2021 sworn by the Applicant.

3. The Respondent/Petitioners Nicholas Kester Syamba, Benson Wangurumo Njonjo And Chris Maruti Syamba opposed the application through a Replying Affidavit dated October 28, 2021 sworn by the 1st Respondent. The application was canvassed by way of written submission. The applicant filed the submissions dated March 7, 2022. The Respondent did not file any written submissions despite his Advocate undertaking on April 4, 2022 to file submissions.

Background 4. This matter concerns the estate of Grace Wambui Kimuyu (hereinafter referred to as the ‘Deceased’) who died testate in Nairobi on July 26, 2014. The Deceased left a written will dated November 29, 2012. Both a copy of the Death Certificate serial Number xxxxxxx and a copy of the written will are annexed to the petition for Grant a Probate dated September 10, 2020 filed by the Respondent.

5. The Deceased was survived by the following persons:-(i)Nicholas Kester Syamba - son(ii)Caroline Njambi Kimuyu – daughter(iii)Trixie Syata Syamba – daughter(iv)Anthony James Muigai – Grandson(v)Jude Michael Otuga – Grandson (Deceased) and her estate comprised of the following assets: -i.Maisonette Number 8 Kirichwa Lane of Ngong Road L.R. No. 209/407/8ii.Apartment Number A4 Almond Court, Rose Avenue off Dennis Pritt Road L.R. No. 209/4350/2 Kilimaniiii.Ruai House on Plot J78 and J79, bonus plot from J79 and J79iv.Cianda Plot ½ acre in six L.R. No. 5999/59v.Isinya 2 acres Kajiado/Kaputiei North/29542vi.Shareholding in Tack Investmentvii.Plot Tinganga/Cianda Block 1/452viii.Naivasha site and service scheme house on Plot 785ix.Shareholding in Mararo united investmentsx.Motor vehicle registration number KBR 084Mxi.Personal effects and household goods.”

6. Following the demise of the Deceased the Respondent Benson Wangurumo Njonjo And Chris Maruti Tsyamba, the Executors named in the will jointly filed a Petition for Grant of Probate. The said Grant was issued on February 23, 2021 but is to be confirmed.

7. In her will dated November 29, 2012 the Deceased bequeathed her estate to the 1st Respondent to hold in trust for her two grandsons Anthony James Muigai And Jude Michael Otuga. The Applicant avers that she is a daughter of the Deceased and the mother to Jude Michael Otuga who was named as a beneficiary under the Will.

8. The Applicant takes issue with the fact that she was not provided for in the written will left by the Deceased. She states that her son (the Deceased’s grandson) who is a beneficiary under the will is now deceased. That she has no income and no means of support for herself. The Applicant avers that she was always had a good relationship with the Deceased and is baffled as to why she was left out of the will.

9. In their reply the Respondents assert that the Deceased was in sound mind when she executed her will. They retort that if the Deceased and the Applicant had been on good terms as alleged then nothing would have prevented the Deceased providing for the Applicant in her will.

Analysis and Determination 10. I have carefully considered the summons before this court, the Affidavit filed in reply as well as the written submissions filed by both parties.

11. It is not in dispute that the Applicant is one of the children of the Deceased. She has annexed to her supporting Affidavit a Birth Certificate Serial Number xxxxxx (Annextrue ‘JSS-3’) confirming this fact.

12. Section 29 of the Law of Succession Act provides that“For the purposes of this Part, “dependant” means—(a)the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death.” (own emphasis)

13. It is clear that the Applicant falls under the definition of a dependant provided by section 29.

14. It is not in dispute that the Deceased in this matter died testate having left a written will dated November 29, 2012. None of the parties challenges the validity of the will. The Applicants grievance is that she, being a biological daughter of the Deceased was not provided for in the said Will.

15. As a general rule a testator is free to dispose of his/her property in any manner he/she deems fit. However, this freedom of a testator to dispose of his free property by will is not absolute. Section 26 of the Law of Succession Act, Cap 160, Laws of Kenya provides as follows: -“Where a person dies after the commencement of this Act, and so far as succession to his property is governed by the provisions of this Act, then on the application by or on behalf of a dependant, the court may, if it is of the opinion that the disposition of the deceased’s estate effected by his will, or by gift in contemplation of death, or the law relating to intestacy, or the combination of the will, gift and law, is not such as to make reasonable provision for that dependant, order that such reasonable provision as the court thinks fit shall be made for that dependant out of the deceased’s net estate.”

16. In this case of Elizabeth Kamene Ndolovs George Matata Ndolo[1996] eKLR the Court of Appeal observed as follows:-“This court must, however, recognize and accept the position that under the provisions of section 5 of the Act every adult Kenyan has an unfettered testamentary freedom to dispose of his or her property by will in any manner he or she sees fit. But like all freedoms to which all of us are entitled the freedom to dispose of property given by section 5 must be exercised with responsibility and a testator exercising that freedom must bear in mind that in the enjoyment of that freedom, he or she is not entitled to hurt those for whom he was responsible during his or her lifetime.”

17. Likewise in ReEstate of Gurdip Kaur Sagoo [2021] eKLR the court stated thus: -“From the holding in the Ndolo case, it is clear that where a dependant is left without reasonable provision for their maintenance and is rendered destitute, the Court will step in to make reasonable provision for such dependant. A testator’s failure to provide for a dependant thereby rendering him destitute is clearly what Section 26 of the Act sought to cure. It is instructive that the Court’s power to tinker with the wishes of the deceased is limited to making reasonable provision to an excluded beneficiary and not to give a share that is equal to the other beneficiaries of the estate as of right. As such, a dependant appeals to the discretion of the Court by demonstrating the need for reasonable provision. Thus, being a child of the deceased alone is not enough for the Court to exercise its discretion in favour of Harvinder. The provisions of Section 28 of the Act and Rule 45 of the P & A Rules make it clear that the intention of Parliament was not to give a share or equal share to every excluded dependant. Had this been so, the Court would have been stripped of discretion and the law regarding provision for an excluded dependent would have been couched in mandatory terms.” (own emphasis)

18. The Deceased in her will did provide for her grandson (a son of the Applicant) Jude Michael Otuga. The Applicant told the court that her son is now Deceased. The Applicant further avers that upon the death of her said son she was kicked out of the house she used to reside in which was one of the properties owned by the Deceased. That she has been forced to seek accommodation with well wishers. That Applicants position is that she has no capital assets and has no income, therefore she is now destitute. She states that during her lifetime the Deceased made no gifts to her. Hence the Applicants present application seeking that provision be made for her out of the estate of the Deceased.

19. I have perused the written will dated November 29, 2012. Paragraph 3 of the will states as follows:-“I direct that my two daughters, the fathers of my grandsons and all their paternal relatives shall not in any way directly or indirectly benefit from my estate.”

20. The Deceased did not give any reasons as to why she excluded her daughters from any benefit from her estate. Similarly, the Respondents have not advanced any reason why the Deceased would have excluded her daughters in her will. Since there is no ascertainable reason why the Applicant was left out of the will. I find that she is entitled to be provided for as a dependant of the Deceased.

21. Section 27 of the Law of Succession Act provides that –“In making provision for a dependant the court shall have complete discretion to order a specific share of the estate to be given to the dependant, or to make such other provision for him by way of periodical payments or a lump sum, and to impose such conditions, as it thinks fit.”

22. Section 28 of the same Act provides–“In considering whether any order should be made under this Part, and if so what order, the court shall have regard to—(a)the nature and amount of the deceased’s property;(b)any past, present or future capital or income from any source of the defendant;(c)the existing and future means and needs of the dependant; (d) whether the deceased had made any advancement or other gift to the dependant during his lifetime;(e)the conduct of the dependant in relation to the deceased; (f) the situation and circumstances of the deceased’s other dependants and the beneficiaries under any will;(g)the general circumstances of the case, including, so far as can be ascertained, the testator’s reasons for not making provision for the dependant.

23. It is manifest that the provision to the Applicant is not a right but is an exercise of the discretion of the court subject to the court being satisfied that there is a need for such provision to be made. To merely allege lack of income, is not sufficient. The Applicant must demonstrate needs for reasonable provision to be made in her favour.

24. The court cannot on the basis of Affidavit evidence determine whether the Applicant is entitled to reasonable provision form the estate and if so in what amount. This is an issue that can only be determined at a hearing at which both parties will be entitled to adduce oral evidence.

25. The proper procedure would be for the executors to file a summons for confirmation of Grant and the Applicant if she is so minded may file an objection on grounds that she is entitled to reasonable provision from the estate of the Deceased.

26. Therefore I find that this application is somewhat premature. Finally, I make orders as follows:-(i)That the Applicant is hereby declared to be a dependant of the Deceased under the terms of section 26 of The Law of Succession Act.(ii)That as a dependant the Applicant is entitled to reasonable provision from the estate of the Deceased.(iii)The provision be made to the Applicant is subject to her satisfying this court that it ought to exercise its discretion in her favour.(iv)That the Executors to file a summons for confirmation of Grant within thirty (30) days from the date of this Ruling, which summons is to be served upon the Applicant.(v)The Applicant upon service of the summons for confirmation has thirty (30) days to file an objection if she so wishes.(vi)That the being a family matter there will no orders on costs.

DATED IN NAIROBI THIS 10TH DAY OF JUNE 2022. MAUREEN A. ODEROJUDGE