[2002] KEHC 1003 (KLR)
The court found that the applicant, the father of the deceased, failed to substantiate his claim of dependency as required under section 29 of the Laws of Succession Act. Evidence showed he was already in possession of significant estate assets, had independent means, and was supported by other children. The court...
Source-derived case information.
- Citation
- [2002] KEHC 1003 (KLR)
- Parties
- Petitioner: Juliet Wavet Muchiri; Respondent: Njeru Kathendu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 269 of 1993
- Procedural Posture
- Succession Cause / Ruling on Application for Provision as Dependant Under Section 29 of the Laws of Succession Act
- Outcome
- Application by the father dismissed. Each party to bear their own costs. Respondent ordered to account for estate funds used.
- Legal Topics
- Succession, Dependant Entitlement, Estate Distribution, Maintenance of Beneficiaries
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Juliet Wavet Muchiri
Petitioner
Njeru Kathendu
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Provision as Dependant Under Section 29 of the Laws of Succession Act
Legal Issues
- 1 Whether the applicant, as the father of the deceased, qualifies as a dependant entitled to a share of the estate under section 29 of the Laws of Succession Act.
- 2 Whether the applicant has substantiated his claim of dependency on the deceased.
- 3 Whether the applicant is entitled to any further portion of the estate beyond what he already possesses.
Ratio Decidendi
The court found that the applicant, the father of the deceased, failed to substantiate his claim of dependency as required under section 29 of the Laws of Succession Act. Evidence showed he was already in possession of significant estate assets, had independent means, and was supported by other children. The court also considered the needs of the minor child of the deceased, who was deemed the primary beneficiary requiring special protection. The court concluded that the applicant was not entitled to any further share of the estate beyond what he already possessed. Additionally, the court noted the improper use of estate funds by the respondent (wife) and ordered her to provide a full...
Court Disposition
Application by the father dismissed. Each party to bear their own costs. Respondent ordered to account for estate funds used.
Orders
- The application by the father for provision as a dependant is dismissed.
- Each party shall bear their own costs.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
H.C. SUCCESSION CAUSE NO. 269 OF 1993
JULIET WAVET MUCHIRI & ANOTHER ………. PETITIONER
V E R S U S
NJERU KATHENDU…………………………. RESPONDENT
R U L I N G
The applicant is the father of the deceased. His attempt to be granted the letters of administration failed as the wife (the Respondent herein) was allowed to file her petition. Now he has filed this application as dependant of the deceased under section 29 of the Laws of Succession Act. In short he wants his share.
Although it became evident that the vehicle, a cow and a calf and water pump - some of the properties mentioned as the estate properties were in his possession, he did not mention that fact in his affidavit. He has mentioned the value of the vehicle as Kshs.150,000/= which has been in his possession. According to the wife the same is vandalized and cannot be more than Kshs.20,000/= in value. It also became evident that the father is not as destitute as he claims to be as he cultivates the land from which he earns the income and has the income from Daily products. These averments made by the wife are not controverted. The father has also not controverted that he has many other children who are also supporting him, and that he has kept several household things of the deceased against the wishes of the wife.
I also take note that the father has not substantiated any of his claims on dependency. However I will also not overlook the deep rooted culture of our country that the children always look after the parents when in need.
The question which is before me is to decide whether after what he has already possessed from the estate property, the father has made out a case against the wife to get more.
As mentioned earlier it seems, at present the father is not a person who needs any portion of estate property apart from already possessed by him. The wife now has another child which has to be catered for by her from her income. I must stress here that the child born is not a child of the deceased and he was not maintained by him prior to his death. Thus this second child has no claim on the estate hereof. It is only the first child of the deceased who is the beneficiary of the estate and she being a minor has to be catered for with special attention and care by this court.
The upshot of all the above is that the application by the father is not allowed. Both parties to meet their own costs.
Having said this, I cannot hoodwink at the fact that the wife has used the estate money improperly and against the provisions of the Law. It is apparent that the deceased left Kenya Shillings 450,000/= in Barclays Bank, Mombasa Branch and the wife has now deponed that only Kshs.50,000/= is remaining in that account. This court shall not take lightly of this improper action of the petitioner/ wife and direct, under the provisions of rule 73 of the Probate and Administration Rules, that the wife tender proper accounts of the sums used by her from the said account. She shall support her accounts with appropriate Bank statements, invoices and receipts.
The said accounts shall be furnished within 21 days from the date hereof. This matter shall thereafter be mentioned on the date convenient to the court and counsel for the parties.
Dated and delivered at Nairobi this 19th day of May, 2002.
K. H. RAWAL J U D G E.