[2021] KEHC 2873 (KLR)
The court held that while it is permissible to allow withdrawal of funds from the deceased's estate for the payment of school and college fees for the dependants under Section 27 of the Law of Succession Act, it is not permissible to order maintenance payments from the estate at this stage. This is because no grant...
Source-derived case information.
- Citation
- [2021] KEHC 2873 (KLR)
- Parties
- Respondent: Samuel Kipkosgei Yator; Respondent: Alice Adhiambo Yator; Respondent: Esther Nandutu; Respondent: Edwin Kipchumba Chesondi; Applicant: Esther Njeri Mungai
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 9 of 2019
- Procedural Posture
- Succession Cause / Interlocutory Application for Withdrawal of Funds for School Fees and Maintenance Pending Determination of Succession
- Outcome
- Application partly allowed.
- Judges
- LK Kimaru
- Legal Topics
- Interim Relief, Maintenance of Dependants, School Fees Payment, Administration of Estate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Kipkosgei Yator
Respondent
Alice Adhiambo Yator
Respondent
Esther Nandutu
Respondent
Edwin Kipchumba Chesondi
Respondent
Esther Njeri Mungai
Applicant
Procedural Posture
Succession Cause / Interlocutory Application for Withdrawal of Funds for School Fees and Maintenance Pending Determination of Succession
Legal Issues
- 1 Whether the applicant is entitled to withdraw funds from the deceased's estate for the school and college fees of the dependants pending determination of the succession cause.
- 2 Whether the applicant is entitled to maintenance from the estate before a grant of representation is issued.
Ratio Decidendi
The court held that while it is permissible to allow withdrawal of funds from the deceased's estate for the payment of school and college fees for the dependants under Section 27 of the Law of Succession Act, it is not permissible to order maintenance payments from the estate at this stage. This is because no grant of representation has been issued, and Section 55(1) of the Law of Succession Act prohibits distribution or advancement from the capital assets of the estate before confirmation of the grant. Therefore, the application for school and college fees was allowed, but the request for maintenance was declined.
Court Disposition
Application partly allowed.
Orders
- The sum of Kshs 521,650 to be paid to the applicant from the deceased's Account No. 0100339571500 at Standard Chartered Bank Ltd, Kitale Branch for the annual school and college fees of the two dependants.
- The request for maintenance of Kshs 350,000 is declined.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KITALE
SUCCESSION CAUSE NO. 9 OF 2019
IN THE MATTER OF THE ESTATE OF THE LATE MOSES CHESONDIN YATOR – DECEASED
SAMUEL KIPKOSGEI YATOR....................................................1ST PETITIONER/RESPONDENT
ALICE ADHIAMBO YATOR.......................................................2ND PETITIONER/RESPONDENT
VERSUS
ESTHER NANDUTU.........................................................................1ST OBJECTOR/RESPONDENT
EDWIN KIPCHUMBA CHESONDI...............................................2ND OBJECTOR/RESPONDENT
ESTHER NJERI MUNGAI...................................................................3RD OBJECTOR/APPLICANT
RULING
By notice of motion dated 30th July 2021, Esther Njeri Mungai, (Applicant) applied to this court for an order that the sum of Kshs 221,650/= being the school fees of Amy Jerop and the sum of Kshs 300,000/= being the college fees of Ness Kiplagat, respectively, be withdrawn from the deceased’s Bank Account No. 010033957500 at Standard Chartered Bank , Kitale Branch. The Applicant has further prayed to be provided with the sum of Kshs 350,000/- to enable her maintain the two dependants of the deceased pending the hearing and determination of the succession cause. The application is supported by the annexed affidavit of the Applicant. In the affidavit, the Applicant depones that she is currently not employed due to the current Covid-19 pandemic situation. She had found it difficult to support the dependants of the deceased especially in regard to their educational needs hence the present application. She pleaded with the court to allow her to withdraw the above sums from the deceased’s account pending the hearing and determination of the succession cause.
The Application was not seriously opposed by the Respondents save that they were not persuaded that the Applicant was entitled to be paid maintenance from the estate of the deceased yet the administration of the estate has not yet been mandated by the court. As regards the payment of the school fees, this court will allow the application and order that the sum of Kshs 521,650/- be paid to the Applicant from the deceased’s Account No. 0100339571500 at Standard Chartered Bank Ltd, Kitale Branch. This sum is the annual school fees for the two dependants of the deceased. The order is made under Section 27 of the Law of Succession Act.
As for maintenance, this court agrees with the respondents that the same cannot be paid at this stage of the proceedings. In the first place, no grant has been issued to administer the estate of the deceased. To do so, would amount to this court distributing the capital assets of the estate of the deceased contrary to Section 55(1) of the Law of Succession Act which provides as follows:-
“No grant of representation, whether or not limited in its terms, shall confer power to distribute any capital assets constituting a net estate, or to make any division of property, unless and until the grant has been confirmed as provided under Section 71”.
In the premises therefore, any such request for advancement from the capital assets of the estate of the deceased shall await the administration of the estate of the deceased. It is so ordered.
DATED AT KITALE THIS 22ND DAY OF OCTOBER 2021.
L. KIMARU
JUDGE