[2012] KEHC 5055 (KLR)
The court found that the circumstances were special and peculiar, as the biological mother of the minors had been missing since 2006 and the father was deceased. The applicant, as guardian and breadwinner, had demonstrated that the two eldest children had excelled academically and were now pursuing university...
Source-derived case information.
- Citation
- [2012] KEHC 5055 (KLR)
- Parties
- Applicant: M.N; Respondent: Standard Chartered Bank Machakos Branch
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 83 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Chamber Summons for Release of Funds for Minors' Education
- Outcome
- application granted with modification
- Judges
- GMA Dulu
- Legal Topics
- Inherent Jurisdiction, Guardianship of Minors, Release of Funds for Education, Welfare of Children
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M.N
Applicant
Standard Chartered Bank Machakos Branch
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Chamber Summons for Release of Funds for Minors' Education
Legal Issues
- 1 Whether the court should exercise its inherent jurisdiction to order the release of funds from the missing mother's bank account for the educational needs of her children.
- 2 Whether the applicant, as guardian and breadwinner, is entitled to seek such orders for the benefit of the minors.
Ratio Decidendi
The court found that the circumstances were special and peculiar, as the biological mother of the minors had been missing since 2006 and the father was deceased. The applicant, as guardian and breadwinner, had demonstrated that the two eldest children had excelled academically and were now pursuing university education. The court held that declining the orders sought would be disastrous for the children and the family. Exercising its inherent jurisdiction, the court granted the application to facilitate the education of the two children, with the condition that the cheques be issued in the names of the respective universities to ensure the funds were used for the intended purpose.
Court Disposition
application granted with modification
Orders
- An order is issued directing the Manager, Standard Chartered Bank Machakos Branch, to issue cheques from the account of F.M.M to the respective universities: (i) Kshs.50,000 for K.M 1 at University of Nairobi; (ii) Kshs.50,000 for K.N at Kenyatta University, being university fees for the minors.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL MISC. APPLICATION NO. 83 OF 2007
IN THE MATTER OF F.M.M
AND
IN THE MATTER OF:
(a)M.K 1 – MINOR
(b)M.K 2 – MINOR
AND
IN THE MATTER OF M.N ………………………. APPLICANT
R U L I N G
In this matter a Chamber Summons was filed on 27th February 2007 as High Court Miscellaneous 14 of 2007 in Nairobi. It was filed under Section 3A of the Civil Procedure Act (Cap 21 Laws of Kenya).
The main prayer was that an order be given by the court directed to the Standard Chartered Bank Machakos Branch to issue cheques from the account of F.M.M (mother) to [name of school withheld] in reference of M.K 1 for Kshs.23,400/= and [name of school withheld] in reference of M.K 2 for 20,900/=, the same being school fees for the minors.
It was disclosed in the application that the said F.M.M who was the biological mother of the two children went missing from September 2006. It was also disclosed that in total, she had six (6) children, the last born at that time aged five (5) years and in Nursery School. The two children for whom payment of school fees was sought were the eldest children. It was further disclosed in the application that the husband of the deceased had died on 27th July 1998.
The file was later transferred to Machakos High Court, and the present file opened. The court thereafter ordered that Standard Chartered Bank Limited be served with the application. The application was fixed for hearing. After the court heard counsel for the Applicant, it ordered as follows:-
That an order be and is hereby directed to the Manager Standard Chartered Bank Machakos Branch to issue cheques from the account of F.M.M (mother) to (a)[name of school withheld]in reference to M.K 1 for Kshs.23,400/= (b)[name of school withheld], in reference of M.K 2 for Kshs.20,900/= the same being school fees for the minors herein.
From that time, no other application was filed. The present application was filed on 23rd November 2011. The main prayer reads as follows:-
(b)An order be issued directing the Manager Standard Chartered Bank Machakos Branch to issue cheques from the account of F.M.M to the Applicants G.M.N in the following terms:-
(i)Kshs.50,000 in reference to K.M 1 pursuing degree of Bachelor of Science at the University of Nairobi.
(ii)Kshs. 50,000/= in reference to K.N pursuing degree of Bachelor of Commerce at Kenyatta University.
The application was brought under Section 3A of the Civil Procedure Act (Cap 21). It was filed with an affidavit sworn by G.M.N, described as a brother in law of F.M.M and the guardian and bread winner for the six (6) children of the said F.
Mr Ngugi for the Applicant also made submissions before me to support the application.
I have considered this application which was filed invoking the inherent powers of the court, to do justice in any particular case. It is unfortunate that the matter of the children disappeared. The two children have also progressed quite far up in their educational ladder. They passed their KCSE examinations very well and are now pursuing university education. I hope they will end up assisting their younger siblings in education and other spheres of life when they complete their studies.
I have considered the special and peculiar circumstances of this case. I am of the view that declining to grant the orders sought may be a disaster to the two children and the whole family.
Doing the best I can to balance the interests of all concerned and do justice, I am persuaded to exercise the court’s discretion to facilitate the education of the two children. I repeat that the two children should stand up to assist their siblings once they complete their studies.
I therefore grant prayer (b) of the application, with the rider that the respective cheques will be issued by the bank in the name of the respective universities.
It is so ordered.
Dated and delivered at Machakos this 22ndday of February2012.
George Dulu
Judge
Applicant and Counsel absent.