[2010] KEHC 153 (KLR)
The court found that the two minors, W.O and S.O, sired by the deceased with the objector out of wedlock, are dependants within the meaning of section 29 of the Law of Succession Act. The fact of their paternity was not denied by the petitioners. The applicant/objector, as their mother and not claiming any share for...
Source-derived case information.
- Citation
- [2010] KEHC 153 (KLR)
- Parties
- Applicant: Millicent Wamaitha; Respondent: Susan Sarange Osiemo; Respondent: John Gichana
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 355 of 2009
- Procedural Posture
- Succession Cause / Ruling on Objection to Grant of Representation
- Outcome
- Objection allowed in part; applicant/objector appointed co-administratrix for the interests of the minors; no order as to costs.
- Judges
- SP Ouko
- Legal Topics
- Succession, Dependants Definition, Administration of Estates, Children Out of Wedlock
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Millicent Wamaitha
Applicant
Susan Sarange Osiemo
Respondent
John Gichana
Respondent
Procedural Posture
Succession Cause / Ruling on Objection to Grant of Representation
Legal Issues
- 1 Whether the two minors, W.O and S.O, sired by the deceased with the objector out of wedlock, are entitled to be recognized as dependants and beneficiaries of the estate.
- 2 Whether the applicant/objector is entitled to be appointed as a co-administratrix of the estate to safeguard the interests of her children.
- 3 Whether there are undisclosed assets in the estate of the deceased.
Ratio Decidendi
The court found that the two minors, W.O and S.O, sired by the deceased with the objector out of wedlock, are dependants within the meaning of section 29 of the Law of Succession Act. The fact of their paternity was not denied by the petitioners. The applicant/objector, as their mother and not claiming any share for herself, qualifies to be appointed as a co-administratrix alongside the petitioners to protect the interests of the minors. The court further found that the applicant/objector did not provide sufficient evidence of undisclosed assets beyond the matrimonial home, and accepted the petitioners' assertion that the bank accounts were in debit and there were liabilities. No order as...
Court Disposition
Objection allowed in part; applicant/objector appointed co-administratrix for the interests of the minors; no order as to costs.
Orders
- The applicant/objector is appointed co-administratrix of the estate to safeguard the interests of the two minors, W.O and S.O.
- No order as to costs.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
SUCCESSION CASE NO. 355 OF 2009
(IN THE MATTERS OF THE ESTATE OF THE LATE ROBERT ENSARE OSIEMO (DECEASED)
MILLICENT WAMAITHA...........................APPLICANT/OBJECTOR
VERSUS
SUSAN SARANGE OSIEMO…….1ST RESPONDENT/PETITIONER
JOHN GICHANA………….……...2ND RESPONDENT/PETITIONER
RULING
The petitioners filed this cause for a grant of representation for the estate of the deceased, Robert Onsare Osiemo, who died intestate and was survived by his widow, Susan Sarange Osiemo, the 1st petitioner, John Gichana Osiemo, the 2nd petitioner and two minors, D.N.O and E.M.O.
The applicant/objector has raised objection to the issuance of the grant and has filed as required by the Law of Succession Act, Answer to Petition and Petition by way of cross-application claiming that the deceased was also survived by two other minors, W.O and S.O who he sired with the objector out of wedlock. She has objected to the grant being issued on the grounds that despite the fact that the two minors are biological children of the deceased, they have not been included in the cause as beneficiaries of the estate. It is also alleged that some of the assets of the deceased have not been disclosed. For instance, accounts with Family Bank and National Bank of Kenya Limited. It is further stated that the alleged liability to the Co-operative Bank of Kenya Limited was fully paid.
In reply to these averments, the 1st petitioner has deposed that the deceased left only the matrimonial home, BAHATI/BAHATI/BLOCK 1/407, which does not generate income; that the three accounts with National Bank of Kenya and Family Bank Limited are in debit status.
The applicant/objector is categorical that she is not interested in the estate for her sake but for the sake of her two children. Although no birth certificates in respect of the two minors are exhibited in this cross-application it is clear from the 1st petitioner’s replying affidavit and her counsel’s submissions that the fact that the two are biological children of the deceased is not denied.
That being so, in terms of section 29 of the Law of Succession Act, the two minors were dependants of the deceased. The applicant/objector being their mother but not laying any claim to the estate for herself qualifies to be a co-administratrix wirh the two petitioners to take care of the interest of the two minors. It is so found.
Regarding the assets, the applicant/objector has not demonstrated that other than BAHATI/BAHATI/BK 1/407 there are other assets. The 1st petitioner has on the other hand shown that the banks accounts are in debit and there are liabilities. I make no orders as to costs.
Orders accordingly.
Dated, Delivered and Signed at Nakuru this 19th day of November, 2010.
W. OUKO
JUDGE