[2024] KEHC 12898 (KLR)

In re Estate of Peter Ouma Onyango (Deceased) (Succession Cause E1198 of 2022) [2024] KEHC 12898 (KLR) (Family) (11 October 2024) (Ruling)

Neutral citation: [2024] KEHC 12898 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Family

Succession Cause E1198 of 2022

PM Nyaundi, J

October 11, 2024

IN THE MATTER OF THE ESTATE OF PETER OUMA ONYANGO ( Deceased)

Between

Lucy Wanjiru Kamau

Applicant

and

Rose Nyalwenge Were Ouma

1st Respondent

Paul Aapollu Ouma

2nd Respondent

Thomas Were Ouma

3rd Respondent

Ruling

1. This ruling relates to Summons dated 16th June 2024 presented under Article 159 of the Constitution of Kenya, Sections 67, 76,26,27,28,47 of the Law of Succession Act and Rules 40 and 73 of the Probate and Administration Rules. The Summons seeks the following orders-1. Spent2. Spent3. That an order so issue granting the dependants/ beneficiaries of the Deceased being Jeremy Baraka Ouma, Monica Nduta Ouma & Daavid Wamalwa Ouma provision for urgent school fees and school related expenses from the Estate of the Deceased.4. That an order do issue making monthly maintenance provision in the sum of Kshs. 150, 000 per month to Lucy Wanjiru Kamau, As Maintenance For Jeremy Baraka Ouma, Monica Nduta Ouma & David Wamalwa Ouma the direct dependents of the deceased pending hearing and determination of this application.5. That the costs of the application be provided in the cause. The Application is supported by affidavit and supplementary affidavit of Lucy Wanjiru Kamau sworn on 16th June 2023 and 24th August 2023 respectively. The Respondents oppose the Application and the 1st Respondent Rose Nyalwenge Were on 3RD July 2023.

2. In summary the Applicant contends that she is a wife of the deceased and together with the deceased they had 3 children, who are the subject of this application. She avers that the Respondents have always known about her marriage/ relationship with the deceased and the 3 children. She has attached Birth certificates for the 3 minors and DNA Test results as proof of paternity. She has also attached school fee invoices to demonstrate that the children are currently in school and MPESA statements of her number showing receipt of money by her from the deceased. She has also attached screen shots of communication between her and the deceased. She avers that currently the children are being supported by the relatives of the deceased (their ‘paternal uncles’)

3. The Respondent denies there was a marriage between the deceased and the Applicant/ Objector. She denies further that they commissioned the DNA Tests and demands that fresh tests ought to be conducted. She contends that the deceased left a valid will which enumerated the dependants of the deceased and the Objector and her children are strangers to the estate and not entitled to a share.

4. The Application was canvassed via written submissions. The Applicants submission are dated 18th October 2023 and she relies on the decisions in R N M v RMN [2017] eKLR and In the matter of the Estate of Mary Syokwia Kyalili [ 2015] eKLR.

5. The Petitioners’/ Respondents’ Submissions are dated 30th November 2024 The Respondents identify the following as the issue for determination1. Whether the Deceased written will is valid2. Whether the Applicant and her children are entitled to provision for the children’s school fees and school related expenses and monthly maintenance in the sum of Kshs 150,000 from the estate of the above deceased.

6. The Petitioner contends that the Will in question passes the test of Section 5(1) of the Law of Succession Act and therefore the will is valid. I will not enumerate the authorities in question as the validity of the will can only be addressed at the hearing of the Objection. In the same vein, suffice it to note that the Respondent challenges that the deceased was the father of the minors and for that reason submits that the orders should not issue.

Analysis Determination 7. Having reviewed the pleadings, the rival submissions and the relevant law, I discern that the primary issue for determination is whether the Court should direct that the minors herein are entitled to maintenance pending hearing and determination of the objection.

8. In arriving at my decision, I take note of the fact that paternity and dependence is challenged. I have had opportunity to consider the authorities cited by the Applicant and note that in both those cases paternity was not challenged. I am alive to the Constitutional and Statutory edict that in all matters concerning children the best interests of the child are the paramount consideration.

9. Article 53(2) provides:“A child’s best interests are of paramount importance in any matter concerning the child.”

10. The same principles are echoed in Section 4(2) and 3(b) of the Children’s Act that provides that:(2)In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.(3)All judicial and administrative institutions, and all persons acting in the name of these institutions, where they are exercising any powers conferred by this Act shall treat the interests of the child as the first and paramount consideration… to the extent that this is consistent with adopting a course of action calculated to—(a)safeguard and promote the rights and welfare of the child;(b)conserve and promote the welfare of the child;(c)secure for the child such guidance and correction as is necessary for the welfare of the child and in the public interest.

11. At the same time the testamentary independence of a deceased person is almost sacrosanct. See the decision in re Estate of Phyllis Wasuna Kamau (Deceased) (Succession Cause 25 of 2019) [2022] KEHC 3286 (KLR) (7 July 2022) (Judgment). This freedom can only be dislodged on cogent evidence. In this case it will be necessary to debunk the will and satisfy that the props (that is the birth certificates and DNA tests) in support of the paternity of the minors by the deceased are unassailable. The Applicant avers that there are good Samaritans who are currently paying the fees of the minors. In the end I am of the view that the matter will be best resolved by expediting the hearing of the Objection.

12. Accordingly, the following orders will issue1. The Application dated 16th June 2023 is dismissed2. The Objection will be mentioned before the Deputy Registrar on 23rd October 2024 to confirm the parties have complied with Order 11 of the Civil Procedure Rules and to take directions on the hearing of the Objection3. There shall be no order as to costs

It is so ordered

SIGNED DATED AND DELIVERED IN VIRTUAL COURT THIS 11TH DAY OF OCTOBER, 2024. P. NYAUNDIJUDGEIn presence of: -Fardosa Court AssistantKimatta Advocate for Petitioner/ Respondent