[2022] KEHC 27020 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

FAMILY DIVISION

SUCCESSION CAUSE NO. E1556 OF 2021

IN THE MATTER OF THE ESTATE OF JOSHUA NYAWARA OTIENO (DECEASED)

RULING

1. Before this Court for determination is the Summons dated 7th October 2021 by which the Applicant AYUB OKOTH NYAWARA (suing on behalf of RYAN GIGGS ANDAI NYAWARA) seeks the following orders:-

“1. Protection orders to issue against Carol Atieno Nyawaraprohibiting interference and intermeddling with the assets of the estate of the deceased.

2. The said Carol Atieno Nyawara be called to account for all the sums she has collected from January 2021 and continues to collect from the residential property of the deceased known as Block 82/6554 Donholm and the monies obtained from the Sugar Cane distribution to Chemelil Sugar Company Ltd, Kibos Sugar Company Limited and Muhoroni Sugar Company Limited from the estate of the Deceased.

3. The said Carol Atieno Nyawara be prohibited from denying the family of the Deceased access to the Deceased home and the family to be allowed to perform the Funeral Memorial Ceremony to the Deceased as per the Luo Customary Laws without undue interference by Carol Atieno Nyawara.

4. That the said Carol Atieno Nyawara be compelled to provide Lucas Otom Nyawara and Jane Atieno Nyawara the grandparents, reasonable and structured access to the grandchildren.

5. That a provision of Kshs 60,000/- monthly be made for the sustenance of Lucas Otom Nyawara and Jane Atieno Nyawara the parents of the deceased from Standard Chartered Bank a/c No. 0151xxxxx.

6. That a provision of Kshs 30,000/- monthly be is hereby made for the upkeep of the minor RYAN GIGGS ANDAI NYAWARA from Standard Chartered Bank a/c 0151xxxxx and payable to his mother and/or the applicant herein.

7. That Chemilil Sugar Company Ltd, Kibos Sugar Company Ltd and Mohoroni Sugar Company Ltd be ordered to provide statement of account of monies being held for and on behalf of the Deceased and be restrained from making any payment on account of sugar cane delivered to them by Carol Atieno Nyawara and/or her agents, and/or servants pending the appointment of an administrator of the estate and confirmation of letters of grant.

8. Costs of this application be paid for by the said Carol Atieno Nyawara”.

2. The application which was brought under Section 45 of the Law of Succession ActandRule 49 of the Probate and Administration Rules was supported by the Affidavit of even date sworn by the Applicant as well as the Further Affidavit dated 4th November 2021.

3. The Respondent CAROL ATIENO NYAWARA filed a Replying Affidavit dated 26th October 2021 in opposition to the application. The mater was canvassed by way of written submissions.

4. The Objector/Applicant filed the written submissions dated 12th November 2021 whilst the Respondent/Petitioner relied upon her written submissions dated 30th November 2021.

BACKGROUND

5. This matter relates to the estate of JOSHUA NYAWARA OTIENO(hereinafter ‘the Deceased’) who died intestate on 26th November 2020. The Respondent Carol Atieno Nyawara is the widow of the Deceased whilst the Applicant Ayub Okoth Nyawara is a brother to the Deceased.

6. The Respondent and her first born daughter Georgia Dorsila Nyawara jointly petitioned the court for letters of Administration Interstate in respect of the estate of the Deceased vide the petition dated 21st July 2021. The Petition remains active as Grant is yet to be made to the Petitioners.

7. The Objector filed an objection to making of Grant dated 25th August 2021 which objection is yet to be substantially heard and determined. In the meantime, the Objector filed this present application seeking an array of orders against the Respondent.

8. The Objector claims that he has brought this application on behalf of Ryan Giggs Andai Nyawara (a minor, son of the Deceased) and on behalf of his aged parents who both relied upon the Deceased for sustenance.

9. The Objector alleges that the Respondent has been illegally collecting rental income since January 2021 from the residential property known as Block 82/6554 Donholm which property is registered in the sole name of the Deceased. That the Respondent has illegally collected payments due to the Deceased for sugar cane distribution to Chemelil Sugar Company Ltd, Kibos Sugar Company LimitedandMuhoroni Sugar Company Limited

10. Finally, the Objector alleges that the Respondent has stopped maintenance support to the aged parents of the Deceased who relied entirely upon the Deceased for their upkeep. That the Respondent has denied the family of the Deceased access to his rural home and has prevented the family from performing the Funeral Memorial Service as per Luo Customary Law.

11. In opposing the application the Respondent asserts that she is the only legal wife of the Deceased to whom she was married for a period of twenty (20) years. That their union was blessed with three (3) children. The Respondent states that the rental units in Donholm were acquired during the subsistence of her marriage to the Deceased and states that she made both direct and indirect contribution towards the acquisition of said property. That the rental income from those units is the only income available to the Respondent for the maintenance and upkeep of the Deceased’s children.

12. The Respondent recognizes and accepts that the minor Ryan Giggs Andai Nyawara is a son to the Deceased but states that the Objector has no locus to file suit on behalf of the minor as he is neither the parent or duly appointed Guardian of the child. That the child has a biological mother who is alive and is quite capable of filing suit on behalf of her son.

13. The Respondent states that it was prudent for her to take up farming and continue with the sugar cane projects initiated by the Deceased in order to supplement the family income.

14. The Respondent denies neglecting the Deceased’s aged parents. She accuses the Objector of failing to disclose to the court that the Deceased mother Jane Atieno Nyawara whom the Deceased named as his nominee received the sum of Kshs 8,990,000 from the LSK Sacco following the demise of her son.

Analysis and Determination

15. I have carefully considered this application, the Affidavit in Reply as well as the written submissions filed by both parties. The key question that arises is what locus the Objector has in this matter. ‘Locus standi’ is a Latin term which literally means ‘place of standing’ and refers to the right of a particular party to bring an action a suit. Black Law Dictionary 10th EditionatParagraph 1084 defines the term ‘locus standi’ as follows: -

“The right to bring an action or to be heard in a given forum.”

16. It is trite law that pleadings filed in court by person with no locus standi are void ab initio and the court would have no jurisdiction in such actions. In Ibrahim v Hassan & Charles Kimenyi Macharia, [2019] eKLR the court observed as follows:-

“Locus standi is basically the right to appear or be heard in court or other proceedings. That means if one alleges the lack of the same in certain court proceedings, he means that party cannot be heard, despite whether or not he has a case worth listening. The issue herein is whether the Applicant lacks the requisite locus standi to seek relief from the court to revoke the grant in question issued to the Respondent. In my view, issues as regards locus standi are critical preliminary issues which must be dealt with and settled before dwelling into other substantive issues”. (own emphasis)

17. By his own admission the Objector is a brother of the Deceased. He is neither a beneficiary nor a dependent of the Deceased in terms of theLaw of Succession Act.

18. The Objector claims to have filed this application on behalf of the minor, son of the Deceased. The said minor has a mother who is alive and who is quite capable of filing suit on behalf of her son. There is no letter from the mother authorizing the objector to file this application on her behalf. Neither is the Objector the legally appointed Guardian of said child. As such, I find that the Objector has no locus standi to file suit on behalf of the minor.

19. In his Further Affidavit dated 4th November 2021, the Objector at paragraph 19 avers that the Respondent has adamantly refused to recognize the child Ryan Giggs Andai Nyawaraas the son of the Deceased. This allegation is not borne out of the facts. The Respondent has indicated that she accepts the minor as a son to the Deceased as evidenced by the fact that the name of said minor is included as a beneficiary in the Petition for letters of Administration filed by the Respondent herself. Thus, this averment by the Objector is not truthful.

20. The Objector has sought that an amount of kshs 30,000 per month be provided for the upkeep of the minor. No basis has been laid for this demand. It is not indicated how that money is to be apportioned. It is to be used for food, rent, education or for what purpose. No invoices have been annexed to support this demand. Obviously, the Objector who is neither the parent nor caregiver of the minor would not have such information. He has just plucked a figure out of the air which figure has no basis.

21. Regarding the prayer for maintenance for the parents of the Deceased once again I find that the Objector has no locus standi to sue on their behalf.

22. Vide paragraph 4 of his Further Affidavit the Objector claimed that he was appointed by the family of the Deceased to represent them for purposes of this suit. No minutes of any meeting at which such resolution was reached has been exhibited to the court. There is no letter of Authority from either the father or mother of the Deceased authorizing the Objector to file suit on their behalf. The parents of the Deceased are adults who are quite capable of filing suit on their own behalf.

23. Moreover, it is manifest that the Objector cunningly kept away from the court relevant information. He failed to disclose that the mother of the Deceased as the nominee of the Deceased had been paid some money by the LSK SACCO.

24. In his Further Affidavit at Paragraph 13 the Objector admits that the mother of the Deceased went to the LSK office where together with the Respondent they received a cheque of Kshs 8,900,000 which funds he claims the two shared. Firstly, the Objector did not disclose this fact to the court in his initial Affidavit. Secondly, even if the mother of the Deceased was given half of kshs 8. 9 million, this is still a very generous amount for an aged woman living in the rural areas. Having been the recipient of this generous amount the parents of the Deceased cannot in any way be said to be destitute. In any event, the Objector is also a son of the same parents. He has not told the court what efforts he has himself made to provide for his elderly parents.

25. Lastly, the father of the Deceased one Lucas Nyawara Otom swore an Affidavit dated 15th October 2021 in which he confirmed that the Deceased was married to the Respondent. The Deceased’s father avers that the Objectors involvement in this Succession Cause is actuated by malice and more pertinently, the said father has not made any request for maintenance and/or upkeep. This begs the question exactly who is the Objector herein acting for?

26. On the whole I find no evidence of any intermeddling on the part of the Respondent. Having said that the court must warn the Respondent that she will ultimately be accountable to the estate of the Deceased and be required to give account for any monies/funds due to the estate.

27. By Prayer 7 of this application, the Objector seeks orders as against Chemilil, KibosandMuhoroni Sugar Companies. None of the said Companies were enjoined as parties in this matter. They are not parties to the suit nor did the Objector serve them with the application. As such, the named companies were not accorded an opportunity to respond to the allegations made against them by the Objector. It would be unjust for the court to issue orders against the said companies without according them a hearing.

28. Finally, I find no merit in this application. The same is dismissed in its entirety. This being a family matter each party shall bear its own costs.

DATED IN NAIROBI THIS 18TH DAY OF MARCH 2022.

…………………………….

MAUREEN A. ODERO

JUDGE