[2014] KEHC 8442 (KLR)
The court found that the consent order of 2nd December 2011, which allowed the applicant to withdraw Kshs.250,000 from the deceased's account for maintenance, fully compromised and disposed of the pending application for monthly withdrawals. There was no indication in the consent that the order was interim or...
Source-derived case information.
- Citation
- [2014] KEHC 8442 (KLR)
- Parties
- Applicant: Emmah Wanjiru Kibara; Respondent: John Kinyanjui Mwangi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1618 of 2011
- Procedural Posture
- Succession Cause / Ruling on Interim Application for Maintenance Pending Confirmation of Grant
- Outcome
- Application dated 23rd August 2011 deemed compromised and disposed of by consent order; no further orders granted.
- Judges
- AO Muchelule
- Legal Topics
- Succession, Maintenance of Dependants, Confirmation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Emmah Wanjiru Kibara
Applicant
John Kinyanjui Mwangi
Respondent
Procedural Posture
Succession Cause / Ruling on Interim Application for Maintenance Pending Confirmation of Grant
Legal Issues
- 1 Whether the applicant should be allowed to withdraw a monthly sum from the deceased's accounts for her and her children's upkeep pending confirmation of grant.
- 2 Whether the consent order allowing a one-off withdrawal compromised the pending application for monthly maintenance.
Ratio Decidendi
The court found that the consent order of 2nd December 2011, which allowed the applicant to withdraw Kshs.250,000 from the deceased's account for maintenance, fully compromised and disposed of the pending application for monthly withdrawals. There was no indication in the consent that the order was interim or subject to further hearing. Therefore, the application dated 23rd August 2011 required no further determination. The only remaining issues were the confirmation of grant and the determination of dependency for the deceased's parents, which should proceed expeditiously.
Court Disposition
Application dated 23rd August 2011 deemed compromised and disposed of by consent order; no further orders granted.
Orders
- The application dated 23rd August 2011 is deemed dealt with and requires no further hearing.
- No order as to costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
SUCCESSION CAUSE NO. 1618 OF 2011
IN THE MATTER OF THE ESTATE OF THE LATE DAVID MWANGI KINYANJUI - (DECEASED)
EMMAH WANJIRU KIBARA....................................1ST PETITIONER
JOHN KINYANJUI MWANGI....................................2ND PETITIONER
AND
EMMAH WANJIRU KIBARA............................................APPLICANT
RULING
1. The applicant is one of the petitioners and administrators of the estate of the deceased who died intestate on 17th November 2009. She is the deceased’s widow and was left with two children. On 23rd August 2011 she filed this application seeking to be allowed to make a monthly withdrawal of Kshs.127,000/= from the deceased’s Account Number [Particulars withheld] at Equity Bank Ltd KNUT House Branch and A/C No. [Particulars withheld] at Kenya Commercial Bank, Moi Avenue Branch for her upkeep and that of the children. This was to be pending the hearing and final determination of the confirmation of the grant. She filed the application for confirmation on 14th June 2012, a grant having been made to her and the other petitioner JOHN KINYANJUI MWANGI. JOHN KINYANJUI MWANGI was the father of the deceased. His wife is PHYLLIS NYAMBURA JOHN. The two have protested by saying that they were dependants of the deceased who ought to be provided for in the estate. The applicant did not include them in her request for confirmation.
2. On 2nd December 2011 the applicant was by consent allowed to withdraw Kshs.250,000/= from the deceased’s account at Equity Bank for the purposes of her upkeep and that of the children. This is how the consent that was signed by counsel of the parties read:-
“By consent the applicant herein EMMA WANJIRU KIBARA be allowed to withdraw a sum of Kshs.250,000/= from the deceased’s account No. [Particulars withheld] Equity Bank for purposes of the deceased dependants’ maintenance. The matter be mentioned on 28th November 2011 or any other suitable date for settlement on the issue of distribution.”
3. The record shows that the parties began to negotiate a settlement on the distribution of the estate. The matter was mentioned severally, but no settlement is yet to be recorded. The applicant then began to take dates for the application dated 23rd August 2011.
4. It does appear clear to me that the consent above compromised the application dated 23rd August 2011. There was no indication in the consent that the order contained therein was an interim one pending any further hearing of the application. What was left on record was the application for confirmation and the determination of dependency on the part of the parents of the deceased. I ask the parties to move with expedition to take a date for that hearing. Otherwise the application dated 23rd August 2011 has been dealt with. I make no order as to costs.
DATED and DELIVERED at NAIROBI this 6th day of November, 2014.
A.O. MUCHELULE
JUDGE