[2017] KEHC 446 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYERI

HIGH COURT SUCCESSION CAUSE.NO. 580 OF 2014

RMM (minor suing through mother and next friend

M W.................................................APPLICANT

- V E R S U S -

P N M...................................1ST RESPONDENT

H T K...................................2ND RESPONDENT

RULING

What is before me is the Summons General, brought by M W (herein after referred to as the ‘applicant’) dated 13/6/17 brought under s.82 (d) of the Law of Succession Act, and rules 63 and 73 of the Probate & Administration rules and all enabling laws.

It seeks orders: -

a) That the application be certified urgent and be heard expeditiously.

b) That the honorable court do authorize the Public Trustee’s office Nairobi to release the applicant Ksh. 475,000/= for the upkeep of the minor/beneficiary RMM (hereinafter referred to as the child, the minor) for the period up to September 2017 when the summons for revocation of grant will be heard.

c) That the respondents herein be compelled to provide an account for the estate of the deceased and the court do issue such further orders and directions as it may deem fit in preservation of the estate.

The grounds for the application as set out on the face of the summons general are;

a) That the minor/beneficiary has been chased out of school owing to fees arrears.

b) That the respondents have continually and wantonly wasted the estate herein and are bound by law to account

c) That the applicant is unable to provide the minor owing to the respondents’ actions to include rent payment and food. (sic)

The application is supported by the affidavit sworn by M w on 14th January 2017 and annexures filed on 22nd June 2017. The application is opposed in the replying affidavit of Patricia Nyawira Muriithi sworn on 25th July 2017.

Background to application

On 16th November 2013 F M Kdied. In her life she had one child, a son by the name A M M who pre-deceased her on 19th November 2012. Antony was married to M w the applicant herein, and between them they had one child the minor herein, RMM, aged 4 at the time of the F M death. The deceased was survived by her mother L G K, two sisters M N K and P N M the 1st respondent, two brothers B M K and H T K, the 2nd respondent.

Grant of letters of administration intestate was issued to the respondents on 23rd September 2014. The certificate of confirmation of grant was issued on 2nd July 2015 distributing the estate of the deceased between 1st respondent and the minor herein.

By an application filed on 9th February 2017, the application filed a summons for revocation of the grant, seeking among other orders the stay of execution of the grant pending the hearing of the summons for revocation. One of the grounds for seeking the revocation was that respondents had not been truthful with regard to the beneficiaries of the estate of F M K, in particular, that the deceased had indicated to her employer, the National Youth Service that her grandchild, the minor in this matter, was the sole next of kin, and only in the event that she could not be traced would the 1st respondent replace her. To support this position, the applicant attached a copy of the next of kin form dated 3rd September 2013.

On 1st march 2017 the injunction was granted and the transmission of the estate was stayed pending the determination of the Summons for Revocation of grant dated 9th February 2017.

This application was brought under certificate of urgency and placed before me on 14th June 2017. Upon its perusal I was of the view that it was wanting for lack of sufficient supporting evidence for the prayers sought. The applicant sought and was granted leave to file a further affidavit to provide the missing information.

The Case for that Applicant

M w depones that after her husband died, she and her child were dependent on the estate of the deceased. That the respondents were disinheriting and rendering her and her child destitute.

That by indicating the child as the next of kin, the deceased intended that she be the only beneficiary of the deceased benefits from her employer. She annexed a note from the deceased’s employer confirming the availability of the deceased’s’ gratuity in the sum of Ksh. 1,421,079. 10 deposited with the Public Trustee Nairobi.

That the 1st respondent had already withdrawn Ksh 2. 1m from the deceased’s Equity Bank Account.

She further deponed that the child had been chased away from ‘O’ Primary School because she could not afford school fees and was in arrears as evidenced by the fees structure and a letter from the head teacher. From the letter by a housing agent, she was also in arrears of rent for 6 months, and her household goods had been confiscated and her ‘premises’, closed for non-payment of rent.

She sought from this court orders, pending the hearing and determination of the Summons for revocation of grant in September, authorizing the Public Trustee to release to her Ksh. 475,000/= being Ksh. 75,596 fees for two terms at ‘O’ Primary School, Ksh. 200,000 to cover the arrears of rent, water and electricity which was Ksh 10, 000 per month, and another Ksh 200,000 to take care of food, medical and basic needs for the child and herself.

The Case for the Respondents.

In her response P N M the1st respondent one of the administrators of the Estate swore an affidavit on 13th March 2017 opposing the application. She denied that the applicant was a dependant of the Estate of F M K. She denied that the applicant was or had been rendered destitute. She averred that the applicant was aware of the succession cause and had been kept up to speed on the progress of the same. That she had accessed Ksh 340,000 from the deceased’s NHIF(National Hospital Insurance Fund) account using a duplicate copy of the deceased’s death certificate, and Ksh 250,000 from the 1st Respondent out of the deceased’s Equity Bank Account according the deceased’s wishes.

She averred that the deceased’s son, the husband to the applicant and father to the minor, was at the time of his death a member of the KDF (Kenya Defence Forces), stationed in Somalia and had died in the line of duty. That upon his death the applicant was paid his death gratuity of Ksh.1. 8million by the Ministry of Defence, and a further Ksh.4million by AMISOM in early 2016. That she was the beneficiary of the widow’s pension and the KDF medical cover for the minor.

That following the death of her husband the applicant had become very rude to the deceased, refused to take care of her when she was taken ill, causing her stress that deteriorated her health until she died. That it was the 1st respondent who had taken care of the deceased until her death. That the applicant after receiving the compensation payments, abandoned the deceased’s home, and was married elsewhere.

On 26/7/17, parties were given 14 days each to exchange written submissions. On 17/10/17 the matter was placed before me under certificate of urgency for purposes of giving a date for ruling on the ground that the minor was becoming destitute.

Submissions

Upon perusal of the file I found Mr. Karweru’s submissions on behalf of the applicant filed on 22/9/17. I found none by counsel for the respondents.

The applicant’s submissions are that the minor is acknowledged by both parties as a beneficiary of the Estate of the deceased. That the court is enjoined by both Constitution and the Children’s Act Cap 141 LoK, to act in the best interests of the child. That the applicant seeks these monies for the benefit of the minor, and not for her benefit. That she has demonstrated that the child has been locked out of school. That the administrator cannot pretend to protect the minor’s interests from the spendthrift life style of her mother and should release the monies for the education of the child. That this child is the sole beneficiary of the deceased’s benefits from her employer and the 1st respondent cannot stand in the way of the monies being spent on the child’s upkeep.

That what is in issue is not the estate of the applicant’s husband, but that of the mother in law to which both are entitled. That the administrator has a duty under section .83 to account to the court from the Estate of the deceased.

Analysis and Determination

The issues for determination are;

i. whether the orders sought are available to the applicant pending the conclusion of the succession cause.

ii. whether the applicant (M w) is a beneficiary to the estate of the deceased

I have carefully considered the submissions by counsel for the applicant, the evidence in the parties’ affidavits and the annexures thereto. The applicant did not file any affidavit to in rebuttal to the averments in the 1st respondent’s affidavit.

Nevertheless, it is common ground that the deceased was the mother in law to the applicant, and the grandmother of the minor who is the subject of this application. It is also common ground that the deceased only son was married to the applicant, and they had one issue, further that the applicant’s husband was an employee of KDF who died while on duty in Somalia one year before his mother. It is also common ground that the document which bears the name of the next of kin provides the name of the child herein and only where the child cannot be traced, then, the next of kin would be the 1st respondent. Hence there is no dispute that the minor is a beneficiary of the deceased’s estate. The issue is about her mother, who seeks within the same prayers, maintenance for herself and whether the court should grant the orders the mother is seeking.

The 1st thing to note is that the urgency of this matter seems to have dissipated. The ‘deadline’ of September previously placed in the application came and passed and one could argue that the application had been overtaken by events. Curiously, the record shows that even the Summons for revocation of the grant was not pursued in September as indicated in the applicant’s affidavit.

The 2nd thing is that, even though the issue before me is not the state of the Estate of the applicant’s husband, it is relevant in determining whether there is any urgency in depleting the minor’s inheritance as left by her grandmother. It also goes to the credibility of what is deponed in her affidavit with regard to the child’s education, and her inability to provide shelter, food and medical care for the child. The averments by the 1st Respondent that the applicant has received payments from KDF and AMISOM as the widow of the deceased’s son, that there exists a medical cover from KDF, that she is the beneficiary of the widow’s pension, that she withdrew the sum of Ksh. 340,000/= from the deceased’s NHIF account, and received Ksh. 250,000/= from the deceased’s Equity Bank Account, all remain unchallenged. These facts paint the picture of a person who has the capacity to maintain the child pending the hearing and determination of the succession cause.

This succession cause was filed in 2014. The child was born on 28/3/10. Her father died on 19th November 2012. Her grandmother died in 2013. There is no evidence before me to show that the deceased was paying school fees for the minor before she died, so that her death would make it impossible for the child to go to school.

Secondly, what was placed before the court is fee structure from ‘O’ Primary School, and a demand notice for arrears of school fees but no evidence at all that this minor is a pupil at ‘O’ Primary School or what class she is in.

There is nothing before this court to support the prayer for rent. There is no lease agreement or evidence that the applicant has indeed been paying rent to anyone. I have also no evidence before me that the deceased was paying rent, electricity and water for the applicant at the time of her death. Neither has any evidence been placed before me that she provided money for food and daily general upkeep for the child.

All I am saying is that the mere fact that the deceased named the child as her next of kin to her employer cannot be held up as proof that that the deceased was providing for the daily upkeep of the child. The date on the document is also telling- about a month before she passed away, by which time we are told the applicant had left the home. The child’s father had a job, the child’s mother was paid compensation for the demise of the father. Whatever she received from her husband’s employer would not have been for her sole use. It would be expected that it would also be used for the benefit of his child.

The applicant is seeking that the respondents appropriate to the minor what she considers to be her inheritance. She has targeted the death gratuity and the monies in the Equity Bank Account. All this is premised under section 82(d) of the Law of Succession Act Cap 160, which provides for the powers of personal representatives:

Personal representatives shall, subject only to any limitation imposed by their grant, have the following powers—

(d) to appropriate, at any time after confirmation of the grant, any of the assets vested in them in the actual condition or state of investment thereof at the time of appropriation in or towards satisfaction of any legacy bequeathed by the deceased or any other interest or share in his estate, whether or not the subject of a continuing trust, as to them may seem just and reasonable to them according to the respective rights of the persons interested in the estate of the deceased, and for that purpose to ascertain and fix (with the assistance of a duly qualified valuer, where necessary) the value of the respective assets and liabilities of such estate, and to make any transfer which may be requisite for giving effect to such appropriation: (emphasis added)

It is very clear that it is only after the grant has been confirmed that the administrator can begin the work of appropriation of the estate towards the satisfaction of any of the legacy’s left by the deceased.

In this case the grant though confirmed, there is an order staying any activity in the estate, and a pending summons to have it revoked. In that regard the issue of giving the minor what belongs to her will happen after the grant has been confirmed. In fact, as at the time the application for confirmation was made, it was not clear what the minor’s nomination as the next of kin of the deceased entitles her to. It is only the deceased’s employer can provide this information depending on their policy on the benefits that accrue to the next of kin. There is no evidence that the inquiry was made by the administrators before arriving at the minor’s share. Neither does the applicant provide any information that what accrues to the nest of kin is what she is asking for. It would therefor behoove the respondents to provide clear information from the deceased’ employer in that regard.

It is not entirely correct to say that the respondents have disinherited the minor and the applicant. Although the grant is up for revocation, it shows that the respondents did provide for the minor, in their own way, by allocating her a plot in Mavoko, and half the proceeds of the deceased’s gratuity from her employer. Whether that is what she is entitled to will become clear when the summons for revocation of the grant is heard.

This brings me to the issue of accounts as requested and as provided for under section 83 of the LAW OF SUCCESSION ACT. It provides that the duties of personal representatives include;

(e) within six months from the date of the grant, to produce to the court a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings therewith up to the date of the account;

(h) to produce to the court, if required by the court, either of its own motion or on the application of any interested party in the estate, a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings therewith up to the date of the account;

(i) to complete the administration of the estate in respect of all matters other than continuing trusts and if required by the court, either of its own motion or on the application of any interested party in the estate, to produce to the court a full and accurate account of the completed administration.

The respondents must account. The allegations and counter allegations of wasting the estate are not good for the minor. This is a legitimate request taking into consideration that this minor had no representation throughout the proceedings, leading to the grant being confirmed without the providing for a continuous trust in terms of section 58(2) LAW OF SUCCESSION ACT which provides;

Where an application for a grant of letters of administration in respect of an intestate estate is made by one person alone and a continuing trust arises the court shall, subject to section 66, appoint as administrators the applicant and not less than one or more than three persons as proposed by the applicant which failing as chosen by the court of its own motion.

There definitely will be a continuing trust considering that the child is only 7 years old. The application for confirmation of the grant did not make the provision for the continuing trust and did not indicate who would hold the minors interest until she came of age. A continuing trust would be an assurance that specific persons were legally liable for the child’s estate and whatever monies will be taken out of the estate in the name of the upkeep for the child, will actually be applied to her upkeep, nothing else.

In my view, this rush to cash out the minor’s entitlement is not in her best interests. The best interests of the child will be served through the conclusion of the succession cause, as required by section 82(d) of the LAW OF SUCCESSION ACT, confirmation of the grant and the determination of what the child is entitled to, which will definitely include what the applicant is entitled to, if at all, and what the respondents are entitled to. The mix up in the application before me can only be to the detriment of the interests of the child.

In the meantime, I need to remind the applicant that the child has the right to parental responsibility as per article 53(1) (e) of the Constitution which provides that both the mother and father have the duty to fulfil this right. Upon the death of the father this responsibility remains with the mother. She retains the parental responsibility for the child and is expected to make decisions that are in the best interests of the child. The Children’s Act goes to set out what this parental responsibility is under section 23 of the children Act Cap 141 LOK

(1) In this Act, “parental responsibility”means all the duties, rights, powers, responsibilities and authority which by law a parent of a child has in relation to the child and the child’s property in a manner consistent with the evolving capacities of the child.

(2) The duties referred to in subsection (1) include in particular—

(a) the duty to maintain the child and in particular to provide him with—

(i) adequate diet;

(ii) shelter;

(iii) clothing;

(iv) medical care including immunisation; and

(v) education and guidance;

(b) the duty to protect the child from neglect, discrimination and abuse;

(c) the right to—

(i) give parental guidance in religious, moral, social, cultural and other values;

(ii) determine the name of the child;

(iii) appoint a guardian in respect of the child;

(iv) receive, recover, administer and otherwise deal with the property of the child for the benefit and in the best interests of the child;

(v) arrange or restrict the emigration of the child from Kenya;

(vi) upon the death of the child, to arrange for the burial or cremation of the child.

For the minor to be said to have been rendered by the death of the grandmother and the actions of the respondents destitute, the applicant has to demonstrate that parental responsibility as defined above, transmitted to the deceased at some time.

As she pursues one of the parental responsibilities to“receive, recover, administer and otherwise deal with the property of the child for the benefit and in the best interests of the child” she must bear in mind that everything must be done not only for the benefit of the child but in the best interests of the child. This is emphasized by Article 53 (2) of the Constitution which provides that “A child’s best interests are of paramount importance in every matter concerning the child”.

The push and pull between the 1st respondent and the applicant indicates to me that they do not seem to grasp what exactly this means with regard to the minor. The court is minded to look into the appointment of a guardian ad litem as provided for in section 79 of the Children Act should this scenario continue to play out.

The applicant must not abdicate the rest of her parental responsibilities She has the obligation to take care of her child, the child’s entitlement herein notwithstanding. I leave that there, and make the following findings and orders as follows;

1. As to whether the applicant (M w) is a beneficiary of the Estate of F M Kto warrant maintenance for herself from it;

i. This will be determined at the hearing of the summons for revocation of the grant dated 9th February 2017. The parties are at liberty to fix it for hearing.

2. As to whether the orders sought can issue at this stage; with regard to prayer (b);

i. The rush to cash out the minor’s entitlement for her daily upkeep is not supported by the evidence place before me. At this stage it is not in the best interests of the child.

ii. The minor’s entitlement as a’ next of kin ‘of the deceased nor her share of the entire estate has not been established.

iii. The application to address the minor’s needs is mixed up with the applicant’s quest for her own share of the estate. The minor’s and her share are not the same. They are separate and distinct.

iv. The effect of the provisions of section. 82(d) of the LAW OF SUCCESSION ACT is that the respondents as personal representatives of the estate can only appropriate the minor’s share after the confirmation of the grant.

3. With regard to prayer (c);

i. In order to ensure (2) above the respondents are hereby ordered to provide the court with a full and accurate inventory of the assets and liabilities of the deceased and a full and accurate account of all dealings therewith up to the date of the account as provided for under section 83(h) of the LAW OF SUCCESSION ACT

ii. Included in (i) above be information from the deceased’s employer as to the full entitlement of a designated next of kin.

4. The stay orders issued on the 1st of March 2017 to remain in force until the determination of the summons for the revocation of the grant.

The orders (3 (i) and (ii) be complied with within 60 days from today’s date.

Mention on the 17th January 2018 to confirm compliance.

Right of appeal 30 days.

Dated, delivered and signed at Nyeri this 17th Day of November 2017.

Teresia Matheka

Judge

N/A for parties and counsel who were aware of the date.