https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11659

Mwikali v Mutiso ( Legal Guardian of the Estate of the Late Elijah Ngungu Mwengi) (Civil Case 49 of 2009) [2026] KEHC 11659 (KLR) (Commercial and Tax) (23 July 2026) (Ruling) Neutral citation: [2026] KEHC 11659 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Civil Case 49 of 2009 F Gikonyo, J July 23, 2026 Between Margaret Mwikali Applicant and Ann Kanini Mutiso (The Legal Guardian of the Estate of the Late Elijah Ngungu Mwengi) Respondent Ruling 1.The plaintiff/ applicant filed the notice of motion dated 21.5.2025 primarily seeking: -1.leave to the firm of Lilan & Koech Associates, LLP to come on record for the Applicant, in place of Gachie Mwanza & Company Advocates.2.the liquidator of Daima Bank Limited (In liquidation) be directed to cease any further payments to the estate or representatives of the late Elijah Ngungu.3.a review of the orders of 19.5.2009 directing that proceeds from the joint savings account particularized held by her and her former spouse, the late Elijah Ngungu Mwengi be shared equally following their divorce.4.an order directing that all proceeds from the said joint Savings Account No. 5005870005 be paid exclusively to the Applicant as the surviving account holder under the doctrine of survivorship. 2.The application is made under Section 1A, 1B, 3A of the Civil Procedure Act, Order 9 Rule 9, Order 12 Rule 7, Order 40 Rule 7 of the Civil Procedure Rules and Article 159 of the Constitution of Kenya. 3.The application is supported by affidavits sworn by the applicant on 21.5.2025 and 12.11.2025. The applicant also filed written submissions dated 12.11.2025 and 20.4.2025. 4.The respondent opposed the application through a preliminary objection dated 3.2.2026, a replying affidavit sworn on 10.7.2025 and written submissions dated 7.4.2026. Applicant’s case 5.The first prayer is not contested on: -leave to the firm of Lilan & Koech Associates, LLP to come on record for the Applicant, in place of Gachie Mwanza & Company Advocates. 6.The applicant deposed that she and the late Elijah Ngungu were formerly married and held a Joint Savings Account No. 5005870005 at Daima Bank Limited (In Liquidation). Following their divorce, on 19.5.2009, the court issued orders directing that the proceeds from the joint account be shared equally between the parties. 7.The applicant also deposed that thereafter, the late Elijah Ngungu fell ill, and his sister, the respondent, obtained guardianship orders to manage his affairs. 8.The applicant further deposed that the late Elijah Ngungu passed away on 6.1.2025. She contended that following his demise, she is the sole beneficiary of the funds held in the joint savings account by dint of the doctrine of survivorship. 9.The applicant contended that despite the circumstances, bank’s Statutory Manager continues to disburse half of the joint account’s proceeds to the respondent, as per the orders of 19.5.2009. 10.The applicant argued that the continued enforcement of the initial orders prejudices her because, as the surviving holder of the joint account, she is solely entitled to its proceeds. Response 11.The respondent raised a preliminary objection claiming that the application is a non-starter and that this court lacks jurisdiction to entertain it. She urged the court to strike out the application with costs. 12.The first point raised is that she lacks locus standi to defend the application as the guardianship over the late Elijah Ngungu terminated automatically upon his death pursuant to Order 32 rule 15 of the Civil Procedure Act and Sections 26 & 28 of the Mental Health Act. 13.Secondly, the respondent contended that the application offends Section 45 of the Law of Succession Act which bars intermeddling with the estate of a deceased person until administration of the estate. Analysis and Determination Preliminary objection 14.The respondent’s preliminary objection challenges the court’s jurisdiction to entertain the present application based on her lack of locus standi to defend it following the automatic termination of her guardianship of the late Elijah Ngungu. She further claims that the application offends Section 45 of the Law of Succession Act which bars intermeddling with the estate of a deceased person until administration of the estate. 15.The applicant asserted that the PO fails to raise a pure point of law and that it is premised on contested factual matters that require ascertainment through the evaluation of evidence and cannot properly be determined at the preliminary stage. 16.Indeed, in the locus classicus, Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 the court stated that: -“…A Preliminary Objection raises a pure point of law, which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.” 17.Guided by the above, it is my considered view that the PO does not raise pure points of law. 18.Therefore, I will consider the points raised within the application. Locus standi 19.The appointment of Ann Kanini Mutiso as his guardian is not contested. 20.The demise of the late Elijah Ngungu is also not contested. 21.However, the applicant argued that section 45 of the Law of Succession Act and Sections 26 and 28 of the Mental Health Act are wholly misplaced by the respondent. She asserted that her application does not amount to intermeddling. She submitted that she merely seeks the court’s determination of the proper legal entitlement to funds in the joint account and the effect of the prior court order considering subsequent death. 22.The applicant asserted that Order 24 of the Civil Procedure Rules, not the Mental Health Act, governs how proceedings should continue after the death of a party. 23.According to the applicant, the termination of a guardianship upon the death of the protected person does not, without more, render a pending application a nullity or deprive the court of jurisdiction. She asserted that the proper course is to invoke Order 24 of the Civil Procedure Rules, which provides a comprehensive framework for the regularization of proceedings after the death of a party. 24.There is concurrence that the legal guardianship of the deceased ceased upon his demise. Therefore, the former guardian no longer has the locus standi to represent the deceased in the proceedings. However, in my view, despite her lack of locus standi does not deprive the court of the jurisdiction to deal with the fundamental issues raised in the application especially in relation to the deceased defendant and preservation of estate property. Respondent’s representation 25.There is also consensus that the proceedings ought to be regularized. 26.Order 24 of the Civil Procedure Rules states that the death of a defendant shall not cause the suit to abate if the cause of action survives or continues. 27.Order 24 Rule 4 states that where a sole defendant dies, the court, on an application, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. 28.There is no evidence that the grant of administration has been issued. For this reason, regularization of these proceedings is pending, yet the need to preserve estate property is the mandate of the court under the law. 29.This Miscellaneous Cause was commenced by the applicant through an application filed on 27.2.2009. She sought a temporary injunction to restrain the respondent from receiving cheques payable to her and the respondent jointly issued from Daima Bank Limited (In Liquidation) in respect of their joint account until the hearing and determination of the case. 30.The court granted the temporary injunction as prayed. The court also granted an order allowing Daima Bank Limited (In Liquidation) to make any further payments in two separate cheques of equal amounts to both the plaintiff and the defendant in settlement of their due dividends regardless of their joint account status ownership. 31.Meanwhile, the applicant has raised pertinent questions regarding the proper legal entitlement to funds in the joint account and the effect of the prior court order considering subsequent death. 32.The applicant argued that the continued enforcement of the initial orders prejudices her because, as the surviving holder of the joint account, she is solely entitled to its proceeds. 33.The respondent claimed that the application offends Section 45 of the Law of Succession Act which bars intermeddling with the estate of a deceased person until administration of the estate. 34.On the other hand, the applicant asserted that her application does not amount to intermeddling. She contended that the respondent’s reliance upon section 45 is misplaced. 35.Both sides have expressed their concerns over the portion of the funds that was being remitted by the Statutory Manager to the respondent. The respondent is not a holder of a grant of representation on behalf of the estate of the deceased. Equally important is that joint ownership of the account changed when entitlement for each holder was determined to be in equal shares. Thus, application of survivorship may be displaced. 36.These changed circumstances and the mandate to preserve estate property constitute a sufficient cause for the court to review its own orders. Section 80 of the Civil Procedure Rules and Order 45 Rule 1 of the Civil Procedure Rules 37.In my considered view, since the guardianship has ceased following the demise of the late Elijah Ngugu, there is sufficient reason to vary the orders of 19.5.2009 in line with the law and the mandate of the court to do justice. 38.It is prudent to have future payments of the portion of the funds that were being remitted by the Statutory Manager to the respondent to be remitted into court pending the determination of the disputed issues. Disposal 39.In conclusion, the respondent’s PO is not merited. Prayers 2 and 3 are uncontested. Prayer 5 is premature to the extent that it seeks setting aside of the order of 19.5.2009. Prayer 6 is also premature. 40.I now make the following orders: -1.The respondent’s PO is dismissed.2.The application is allowed in the following terms: -3.leave is granted to the firm of Lilan & Koech Associates, LLP to come on record for the Applicant, in place of Gachie Mwanza & Company Advocates.4.The order dated 19.5.2009 is varied as follows: -An order be and is hereby issued directing Daima Bank Limited (In Liquidation) to make payment of the due dividends in two separate equal amounts, with the plaintiff's portion being paid directly to the plaintiff and the defendant's portion being deposited into court, pending the hearing and determination of the dispute or until further orders of the court.5.Costs in the cause.6.Any order not specifically granted is deemed to be denied. DATED, SIGNED AND DELIVERED THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 23RD DAY OF JULY, 2026-----------------F. GIKONYO MJUDGEIn the presence of: -Ms. Mulinda for RespondentKiptoo for ApplicantCA –Aggrey