[2012] KEHC 838 (KLR)
The court found that the requirement for consents to the mode of distribution did not apply in this case because the only persons entitled to consent were the applicants themselves, and the only other beneficiary was a minor who is legally incapable of consenting. The applicants acknowledged their obligation to hold...
Source-derived case information.
- Citation
- [2012] KEHC 838 (KLR)
- Parties
- Applicant: Rehema Wangui Mathai; Applicant: Elsie Neema Mathai; Respondent: Mr. Mboroki
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Judgment Date
- 17 October 2012
- Case Number
- Succession Cause 2061 of 2010
- Procedural Posture
- Succession Cause / Ruling on Application for Confirmation of Grant
- Outcome
- grant confirmed; estate to be distributed as agreed; costs in the cause
- Judges
- CM Njagi
- Legal Topics
- Confirmation of Grant, Administration of Estate, Interests of Minors
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rehema Wangui Mathai
Applicant
Elsie Neema Mathai
Applicant
Mr. Mboroki
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Confirmation of Grant
Legal Issues
- 1 Whether the grant of letters of administration intestate should be confirmed in the absence of consents to the mode of distribution.
- 2 Whether the interests of a minor beneficiary have been adequately protected in the proposed distribution.
Ratio Decidendi
The court found that the requirement for consents to the mode of distribution did not apply in this case because the only persons entitled to consent were the applicants themselves, and the only other beneficiary was a minor who is legally incapable of consenting. The applicants acknowledged their obligation to hold the minor's share in trust until he attains majority, and the court was satisfied that the minor's interests would be protected, especially under the oversight of his uncle. There was no evidence to suggest that the applicants would not act in the best interests of their minor sibling. Accordingly, the court confirmed the grant and ordered distribution in accordance with the...
Court Disposition
grant confirmed; estate to be distributed as agreed; costs in the cause
Orders
- The grant of letters of administration intestate made to Rehema W. Mathai and Elsie N. Mathai on 13th December, 2011 is confirmed.
- The estate shall be shared in accordance with the agreed mode of distribution.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
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IN THE MATTER OF THE ESTATE OF SARAH WAMBUI
MATHAI - (DECEASED)
RULING
The application before the court is for confirmation of a grant of letters of administration intestate made in this matter to Rehema Wangui Mathai and Elsie Neema Mathai on 13th December, 2011. The application is dated 24th July, 2012 and is brought by summons for confirmation of grant taken out under Section 71(3) of the Law of Succession Act and Rule 40(1) of the Probate and Administration Rules.
The application is supported by the annexed affidavit of Rehema W. Mathai and Elsie N. Mathai, the Applicants herein, and is based on the grounds that it is over six months since the grant was made, and that the Applicants have identified, ascertained and determined the shares of all persons beneficially entitled to the deceased’s estate.
Prima facie, the application satisfies the requirements for confirmation of the grant. However, Mr. Mboroki for the Caveator argued that on the face of it there were no consents to the mode of distribution, and that this was a mandatory requirement. With respect, this argument does not bear any weight since the only persons who would have consented to the mode of distribution are also the Applicants themselves. The only other interested party is a minor aged 14 years and therefore unqualified to consent.
The second point raised by Mr. Mboroki was that we are not told who would take care of the interests of the minor. However, I note from paragraph 4 of the supporting affidavit that the Applicants do acknowledge that their brother is a minor aged 14 years. They take a step further by emphasizing in paragraph 7 of the said affidavit that their said brother is a minor whose shares they will hold in trust until he attains the age of majority thereby acquiring capacity to hold his own shares.
For the time being, this ought to pacify the minor’s uncle whom we are told would like to be assured that the child’s share in cash, which will be used for his education, will be taken care of. The administratrixes have ears to hear with and having heard their uncle’s concerns, they are put on notice. The fact that they will be operating under the watchful eyes of their uncle should dissuade them from misconducting themselves in any way. I have no reason to doubt their ability to rise to the occasion and take care of their minor sibling. Being of that persuasion, I see no reason why the grant should not be confirmed. I accordingly make the following orders-
1. The grant of letters of administration intestate made in this matter to REHEMA W. MATHAI and ELSIE N. MATHAI on 13th December, 2011 is hereby confirmed.
2. The estate be shared in accordance with the agreed mode of distribution.
3. Costs in the cause.
DATEDand DELIVEREDat NAIROBI this 17th day of October, 2012
L. NJAGI
JUDGE