[2015] KEHC 3246 (KLR)
The court held that the existence of an internal dispute resolution mechanism within the Respondent's Retirement Benefits Scheme does not oust the jurisdiction of the court to inquire into the amount due to the estate. The preliminary objection raised by the Respondent was found incapable of resolving the dispute...
Source-derived case information.
- Citation
- [2015] KEHC 3246 (KLR)
- Parties
- Applicant: Isaac Ingati Abong'; Applicant: Carolyne Ayoti Oriedo; Respondent: Kenya Commercial Bank Limited
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 151 of 2009
- Procedural Posture
- Succession Cause / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed with costs to the petitioners
- Judges
- SJ Chitembwe, AT Sitati
- Legal Topics
- Preliminary Objection, Retirement Benefits Scheme, Jurisdiction of Court, Confirmed Grant, Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaac Ingati Abong'
Applicant
Carolyne Ayoti Oriedo
Applicant
Kenya Commercial Bank Limited
Respondent
Procedural Posture
Succession Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the court has jurisdiction to determine disputes relating to retirement benefits payable to a deceased member's estate.
- 2 Whether the preliminary objection by the respondent can dispose of the dispute without a full hearing.
- 3 Whether benefits under a retirement scheme form part of the deceased's estate.
Ratio Decidendi
The court held that the existence of an internal dispute resolution mechanism within the Respondent's Retirement Benefits Scheme does not oust the jurisdiction of the court to inquire into the amount due to the estate. The preliminary objection raised by the Respondent was found incapable of resolving the dispute conclusively, as the underlying issue of whether monies are due to the estate would persist regardless of the objection's outcome. The Petitioners are entitled to effect the confirmed grant, and the Respondent, if holding funds, should facilitate the process or provide the necessary procedures. Therefore, the preliminary objection was dismissed with costs to the Petitioners.
Court Disposition
preliminary objection dismissed with costs to the petitioners
Orders
- The preliminary objection is dismissed.
- Costs awarded to the Petitioners.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
PROBATE AND ADMINISTRATION
SUCCESSION CAUSE NO. 151 OF 2009
IN THE MATTER OF: THE ESTATE OF ALICE ORIEDO OKENG'O alias ALICE AKENG'O ORIEDO(Deceased)
AND
ISAAC INGATI ABONG'
CAROLYNE AYOTI ORIEDO......................................PETITIONERS
VERSUS
KENYA COMMERCIAL BANK LIMITED...................RESPONDENT
RULING
The Petitioners filed an application dated 23rd April, 2012 seeking to have the Respondent show cause why it cannot release monies due to the estate herein. The Respondent filed a Notice of Preliminary Objection dated 23rd April, 2013. The main issue being raised in the Preliminary Objection is that the Respondent's Retirement Benefits Scheme has its own dispute settlement mechanism and the Petitioners have not pursued that mechanism. It is further contended that benefits payable under the scheme shall not form part of the assets of a deceased member's estate but shall be dealt with under the rules of the scheme.
I have through through the preliminary objection and the three authorities cited by Mr. Mukele for the Defendant. The preliminary objection herein will not settle the dispute once and for all. By telling the court that the defendant's scheme has its own rules does not preclude the jurisdiction of the court to call upon the Defendant ad find out how much is due to the Petitioners. There is already a confirmed grant which indicates that there is money being held by the Defendant. If the Defendant's position is that it does not hold any money, then the matter can proceed to hearing and determination can be made. If the Defendant acknowledges that it is holding some money but would like the Petitioners to follow the in-house rules, it can provide the petitioners with the relevant forms and procedure to be followed and thereafter record a consent in court.
I do find that the preliminary objection is not capable of resolving the dispute. Even if it is granted the dispute will still subsist and will subsequently end up in court. The Petitioners are simply trying to effect the confirmed grant. In the end, the Preliminary Objection is hereby dismissed with costs to the Petitioners.
Dated and signed this 25th day of February, 2015
Said J. Chitembwe
JUDGE
Delivered and countersigned on this 18th day of March2015
Ruth Sitati
JUDGE