[2008] KEHC 559 (KLR)
The court held that while most of the proposed distribution of the estate was acceptable, the registration of Plot No.2682 solely in the name of Mary Omwoyo would not safeguard the interests of the minor beneficiaries as required by law. The Law of Succession Act mandates that property be held in trust for minors...
Source-derived case information.
- Citation
- [2008] KEHC 559 (KLR)
- Parties
- Applicant: Mary Omwoyo; Applicant: Jared Ogecha Ongiri
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Bankruptcy Cause 53 of 2007
- Procedural Posture
- Succession Cause / Ruling on Confirmation of Grant
- Outcome
- Partially allowed; confirmation of grant with modification regarding registration of Plot No.2682.
- Legal Topics
- Confirmation of Grant, Distribution of Estate, Interests of Minors, Life Interest, Trusteeship, Succession Act Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Omwoyo
Applicant
Jared Ogecha Ongiri
Applicant
Procedural Posture
Succession Cause / Ruling on Confirmation of Grant
Legal Issues
- 1 Whether the proposed mode of distribution of the deceased's estate is in the best interests of the minor beneficiaries.
- 2 Whether the distribution conforms with the Law of Succession Act regarding life interest and trusteeship for minors.
Ratio Decidendi
The court held that while most of the proposed distribution of the estate was acceptable, the registration of Plot No.2682 solely in the name of Mary Omwoyo would not safeguard the interests of the minor beneficiaries as required by law. The Law of Succession Act mandates that property be held in trust for minors and that a surviving spouse's life interest operates as a safeguard against waste. Therefore, the plot must be registered in the joint names of the two administrators, to be held in trust for the minors. Upon the minors attaining majority, the property shall be registered in the joint names of Mary Omwoyo and the two sons, with the spouse retaining a life interest. This ensures...
Court Disposition
Partially allowed; confirmation of grant with modification regarding registration of Plot No.2682.
Orders
- The deceased's estate to be distributed substantially as proposed by the administrators, except for Plot No.2682.
- Plot No.2682 to be registered in the joint names of the two administrators, to be held in trust for the minor beneficiaries.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA OF KISII
Succession Cause 53 of 2007
IN THE MATTER OF: The Estate of Lameck Omwoyo (Deceased)
AND
IN THE MATTER OF: An Application by
1. Mary Omwoyo
2. Jared Ogecha Ongiri (for Confirmation of Grant)………………… APPLICANTS
RULING
The administrators of the Estate of Lameck Omwoyo are Mary Omwoyo and Jared Ogecha Ongiri. On 14th October, 2008 the administrators applied for confirmation of the Grant of Letters of Administration issued by this court to them on 18th February 2008. The deceased left behind his widow, Mary Omwoyo (1st applicant) and two minors, Moses Mogire Omwoyo and Erick Ongau Omwoyo aged 15 and 12 years respectively. The three are the beneficiaries of the deceased’s Estate. The deceased’s estate consists of the following:
(i) Kshs.75,000/= at Ufundi Sacco.
(ii) Kshs.6,000/= at the Co-operative Bank of Kenya Ltd.
(iii) Motor vehicle Reg. No.KAG 043A.
(iv) Death Gratuity of Kshs.300,000/=.
(v) Plot No.2682 at Kisii.
In their affidavit in support of the aforesaid application the two administrators proposed that the estate be apportioned as follows:
(a) The Kshs.75,000/= at Ufundi Sacco be spent in completion of a servant quarter that was partially constructed by the deceased.
(b) Motor Vehicle Reg. No. KAG 043A be sold and the proceeds thereof utilized in paying a balance of Kshs.170,000/= in respect of parcel No.2682, Kisii.
(c) Of the Kshs.300,000/= Death Gratuity, Kshs.20,000/= be paid to Mary Omwoyo for upkeep of the two minor beneficiaries, Kshs.80,000/= to be paid to Mary Omwoyo to enable her pay school fees for the aforesaid minor beneficiaries and the balance of Kshs.200,000/= to be utilized in construction of a permanent house at the aforesaid plot.
(d) Plot No.2682 to be transferred to Mary Omwoyo.
(e) Kshs.6,000/= at the Co-operative Bank of Kenya to be paid to Mary Omwoyo to satisfy other domestic or household needs.
Section 58 of the Law of Succession Act Cap 160 requires that where a continuing trust arises the Grant of Letters of Administration shall not be made to one person alone except where that person is the Public Trustee or a Trust Corporation. The underlying objective of this provision is to safeguard the interests of minor beneficiaries of the estate.
The mode of distribution of the Deceased’s estate proposed by the administrators herein is not in the best interests of the minors neither is it in strict conformity with the law. Where an intestate leaves behind a spouse and children the surviving spouse is entitled to the personal and household effects of the deceased absolutely and a life interest of the net intestate estate. The spouse holds the property in trust for the children of the deceased. The life interest operates as a safeguard for the children of the deceased in cases where the surviving spouse is likely to waste the estate.
In this particular case, I have no objection to utilization of the deceased’s estate in the manner as proposed by the administrators except with regard to Plot No.2682. The plot shall be registered in the joint names of the two administrators who shall hold the same in trust for the benefit of the minor beneficiaries, Moses Mogire Omwoyo and Eric Ongau Omwoyo.
Upon attainment of the age of majority by the minors, the aforesaid property shall be registered in the joint names of Mary Omwoyo and the two sons of the deceased. The deceased’s spouse shall have life interest of the same.
DATED, SIGNED and DELIVERED at KISII this 4th day of November, 2008
D. MUSINGA
JUDGE
Delivered in the open court in the presence of:
1. Applicants.
D. MUSINGA
JUDGE