[2021] KEHC 9579 (KLR)
The court determined that, given the inability to trace the children of the deceased and the lack of knowledge or means by the current administrator to locate them, it is in the best interests of the estate and the missing beneficiaries that the Public Trustee be appointed as administrator. This ensures that the...
Source-derived case information.
- Citation
- [2021] KEHC 9579 (KLR)
- Parties
- Applicant: Juliah Muthoni; Respondent: Public Trustee
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 259 of 2004
- Procedural Posture
- Succession Cause / Ruling on Confirmation of Grant and Appointment of Administrator
- Outcome
- Summons for confirmation of grant held in abeyance; Public Trustee appointed as administrator for the interests of the missing children.
- Judges
- NA Matheka
- Legal Topics
- Succession of Estates, Appointment of Administrator, Interests of Minors, Public Trustee Role
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Juliah Muthoni
Applicant
Public Trustee
Respondent
Procedural Posture
Succession Cause / Ruling on Confirmation of Grant and Appointment of Administrator
Legal Issues
- 1 How should the court preserve the share of the deceased's children whose whereabouts are unknown in the administration of the estate?
- 2 Who should be appointed as administrator to safeguard the interests of the missing beneficiaries?
Ratio Decidendi
The court determined that, given the inability to trace the children of the deceased and the lack of knowledge or means by the current administrator to locate them, it is in the best interests of the estate and the missing beneficiaries that the Public Trustee be appointed as administrator. This ensures that the interests of the children are preserved should they come forward in the future. The court relied on Section 66 of the Law of Succession Act, which provides for the appointment of the Public Trustee in such circumstances, and held the confirmation of grant in abeyance pending further directions.
Court Disposition
Summons for confirmation of grant held in abeyance; Public Trustee appointed as administrator for the interests of the missing children.
Orders
- Summons for confirmation of the grant herein be held in abeyance until further orders of this Court.
- The Public Trustee is appointed administrator of the Estate of Jane Chepkoech Bosuben for purposes of pursuing the interests of her children in this cause.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
SUCCESSION CAUSE NO. 259 OF 2004
IN THE MATTER OF THE ESTATE OF THE LATE JOHN MBUTHIA WARURINGI (DECEASED)
RULING
On the 18th day of July 2019, the Hon. Justice A. K. Ndung’u held in abeyance the Confirmation of Grant in this matter pending the appearance of the Chief Lanet Location to shed light on the whereabouts of the children of the deceased herein above and Jane Chepkoech Bosuben.
The reason was that Jane had been the administrator of the estate and together with her children, were the beneficiaries of the estate as named in the said Chief’s letter. Unfortunately Jane passed on as well and Juliah Muthoni was appointed as the new administrator.
I took over the matter at the time the said Chief was being looked for as he had already retired. For some reason he could not be traced. I have mentioned the matter severally for his attendance to no avail and Juliah the current administrator states that she does not know the said children. The issue then is how does the court preserve the share of the children in case they show up as adults to claim their share of their father’s estate?
This is a peculiar case where the administrator does not know them or their whereabouts. None of their relatives is known to the administrator. She may not have the wherewithal to search for these children.
In making a determination in their best interests I find guidance in Section 66 of the Law of Succession Act. It states.
“Preference to be given to certain persons to administer where deceased died intestate When a deceased has died intestate, the court shall, save as otherwise expressly provided, have a final discretion as to the person or persons to whom a grant of letters of administration shall, in the best interests of all concerned, be made, but shall, without prejudice to that discretion, accept as a general guide the following order of preference—
(a) surviving spouse or spouses, with or without association of other beneficiaries;
(b) other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests as provided by Part V;
(c) the Public Trustee; and
(d) creditors:”
The Public Trustee holds a special position in these matters. That office is entrusted with the powers of an administrator who has no vested interests in the property except to deal with it in accordance with the law.
In this case, Jane Chepkoech Bosuben was registered identity card number 8744932. There must be details about her with the Registrar of Persons and the Registrar of Births and Deaths that can assist to track down her two daughters Valentine Cherono Mbuthia and Vivian Chebet Mbuthia.
To enable this, it is my view that the Public Trustee be made a party to this cause.
I therefore make the following orders:
1. That Summons for confirmation of the grant herein be held in abeyance until further orders of this Court.
2. The Public Trustee is appointed administrator of the Estate of Jane Chepkoech Bosuben for purposes of pursuing the interests of her children in this cause.
3. This order be served on the Public Trustee.
4. Mention in court on the 28th January 2021 for directions.
5. Orders accordingly.
Dated this 13th January 2021
Mumbua T Matheka
Judge
Delivered virtually this 21st day of January 2021
In the presence of:
Court Assistant: Edna
Counsel for the administrator: Ms Njoroge for the objector