[2009] KEHC 110 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KERICHO Succession Cause 348 of 2007

1. Family Law

2. Law of Succession

3. Grant of Probate intestate

a)Estate of male deceased aged 103 years in 2007.

b)Two houses.

i)house No. 1 – 6 children

ii) house No. 2 – 3 children all adults

4. Application dated 7th May, 2009

a)Leave for Petitioner to withdraw a total sum of Kshs. 740,000/= to pay school fees for school going children who survived deceased.

b)Others not stated but within application

·Running deceased estate pending confirmation.

·Debt to Linus Kipkorir Tonui

5. Held

a)No administrator to the estate has been appointed by court.

b)All of the deceased children are between the ages 53 years to 70 years old.

c)There are no minor children

d)The funds in the deceased account is Kshs. 943,136. 95. Amount sought to be withdrawn is 740,000/=

e)No disclosure of the liability of deceased is mentioned. The debtor has not been named in P&A 5 as a liability/creditor

f)Application a sham and is dismissed.

6. Case Law– Nil.

7. Advocate

J.M. Motanya advocate instructed by the firm of M/S J.M. Motanya &

Co.Advocates for the Petitioner/applicant - present

KIMITEI ARAP TANUI …………………………..DECEASED

VERSUS

ESTHER CHERUTO ……………………...... 1ST PETITIONER

RAEL CHEROP MITEI …………………… 2ND PETITIONER

JOSEPH KIPKORI MITEI ………………….. 3RD PETITIONER

RULING

I: Application dated 7th May, 2009

1. Urgent funds are needed for school fees for the survivor to the deceased estate. One Joseph Kipkorir Mitei deponed to an affidavit in which he stated that grant of letters administrator to the estate of Kimitei Arap Tonui (deceased) was granted to “us” on 9th November, 2007.

2. Some of the deceased property had not been ascertained and as such an application to confirm the grant could not be easily made.

3. In his affidavit he stated that deceased left school going children surviving him namely,

Sylvester Korir no ages disclosed

Moses Cheruiyot Chepkwony no ages disclosed

Kipkurui Chepkwony no ages disclosed

who need school fees.

4. Further, they need urgent funds in order to cover the said needs being A/C NO. 0110054648700 Cooperative Bank Kericho.

5. The needs required being:-

a)Running the Deceased’s estate pending confirmation Kshs. 450,000/=

b)School fees Kshs. 150,000/=

c)Debt to Linus Kipkorir Tonui Kshs. 140,000/=

ID 0279652 -----------------------

Total Kshs. 740,000/=

=============

6. This Court requested for a further affidavit from the bank to ascertain how much was exactly in the said account as the same had not been disclosed? The bank disclosed that a total of Kshs. 942,136/95 was in the account.

II: Findings

7. The following facts have been noted by this court:-

a)Grant of letters intestate.

8. From this cause there has never been any grant of letters of administration issued to anyone nor the petitioner. The date of 9th November, 2007 alleged that the grant was issued is at variance with the date of 14th November, 2007 when the Kenya Gazette was issued without any orders from the judge to effect such orders.

9. No judge has made orders for grant in this matter.

a. There is therefore no letters of grant that have been issued. Therefore one Joseph Kipkorir Mitei has no authority nor locus standi herein.

b. Even if per chance he had authority or the letters of grant lawfully, the following facts are again at variance with his prayers.

B) Deceased

12. The deceased died at the age of 103 years old. He had two houses. His first wife is deceased. He is survived with six children from the 1st house and 3 children for the 2nd house and a widow No. 2.

C) Survivor

13. Two of the survivors are of the same age. All the survivors nonetheless are aged 53 to 70 years old. This clearly shows that there are no minors in this cause.

D) Debtor

14. The P&A 5 form does not show any where that the deceased had liabilities. To say so now means this debt is inconsistent to the facts given on form P&A 5.

E) Needs of the Estate

15. The needs of running the estate have not been particularized. Namely, apart from the statement there are needs there are no breakdown as to how this came about i.e. Kshs. 450,000/=.

I accordingly find that there is no basis to this application. It is accordingly dismissed.

DATED this 28th day of May, 2009 at KERICHO

M.A. ANG’AWA

JUDGE

Advocate

J.M. Motanya advocate instructed by the firm of M/S J.M. Motanya &

Co. Advocates for the Petitioner/applicant - present