[2004] KEHC 1681 (KLR)
The court found that Teresa Nyabonyi Onyango is a recognized dependant of the deceased, as evidenced by the succession documents and not disputed by the objector. The application for payment of school fees was urgent and reasonable, given that the child had already been sent home from school. The amount sought was...
Source-derived case information.
- Citation
- [2004] KEHC 1681 (KLR)
- Parties
- Applicant: Martha Kemuma Onyango; Respondent: Monica Kerubo Mogire
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 271 of 2001
- Procedural Posture
- Succession Cause / Ruling on Application for School Fees From Estate Funds
- Outcome
- application allowed as prayed, with subsequent reduction of amount ordered
- Judges
- K Bauni
- Legal Topics
- Estate Administration, Maintenance of Dependants, School Fees Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Martha Kemuma Onyango
Applicant
Monica Kerubo Mogire
Respondent
Procedural Posture
Succession Cause / Ruling on Application for School Fees From Estate Funds
Legal Issues
- 1 Whether the applicant is entitled to payment of school fees for a dependant from the deceased's estate.
- 2 Whether the application for payment of school fees is urgent and reasonable.
- 3 Whether the reduction of the previously ordered amount is justified.
Ratio Decidendi
The court found that Teresa Nyabonyi Onyango is a recognized dependant of the deceased, as evidenced by the succession documents and not disputed by the objector. The application for payment of school fees was urgent and reasonable, given that the child had already been sent home from school. The amount sought was modest relative to the estate's value and did not prejudice the interests of other heirs. The objector failed to demonstrate any material change in circumstances that would justify denying or varying the order. The court therefore allowed the application for payment of school fees from the estate, and subsequently allowed a reduction in the amount to be paid, finding the revised...
Court Disposition
application allowed as prayed, with subsequent reduction of amount ordered
Orders
- The application for payment of school fees from the deceased's estate is allowed as prayed.
- The amount to be paid is reduced from KES 45,000 to KES 38,000, to be paid directly to Nyabururu Girls' High School.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISII SUCCESSION CAUSE NO.271 OF 2001
IN THE MATTER OF THE ESTATE OF WINSTONE ONYANGO
ORWENYO ………………………………………………………………… DECEASED
BETWEEN
MARTHA KEMUMA ONYANGO ……………………….. PETITIONER/APPLICANT
MONICA KERUBO MOGIRE …………………………. OBJECTOR/RESPONDENT
RULING:
I have carefully considered the application and the objection thereto. I find the application is merited. There is no dispute that Teresa Nyabonyi Onyango is a daughter of the deceased WINSTONE ONYANGO ORWENYO. This is so shown in form P & A5 filled on 12/11/01.
Further it is not denied by the Objector that she is now a student at Nyabururu Girls High School. The objector even entered a consent order last year for her school fees. What is now being applied for is for an order that fees be paid from the deceased’s account. I would not call that plundering the estate of the deceased. I believe even the objector would want to see the child finish her schooling.
Schools have already opened and court was told the child has already been sent home. One therefore cannot say the application is premature or not urgent. The student cannot stay at home until directions are taken.
The issue of the applicant swearing affidavit to show the inventory of the assets of the estate is not necessary as form P&A 5 was filled on 12/11/01 and it clearly shows the assets of the deceased. The net value is given at shs.2. 5 million.
The application prays for mere shs.45,000/=. One cannot say that that is providing for one heir at the expense of the other heirs.
Counsel for objector told court that circumstances have changed since last year when they entered a consent to provide for the same dependants. I was not told how they have changed. I however feel that the only circumstances that have changed is that the dependant is joining form Two and not form one.
All in all I find application is reasonable. The same allowed as prayed. Costs in the cause.
KABURU BAUNI
JUDGE
9/2/04
Signed, dated and delivered on 9/2/04. Mr. Ondika holding brief for Mr. Oguttu for applicant. No appearance for the objector.
KABURU BAUNI
JUDGE
1/3/04
Bauni J
Order: Application dated 26/2/04 certified urgent.
KABURU BAUNI
JUDGE
1/3/04
4/3/04
Bauni J
CC – Obino
Mr. Oguttu for applicant
Mr. Oguttu: I am for applicant. Our application is for the court’s order issued on 9/2/04 to be changed to reduce the amount ordered of shs.45,000/= to shs.38,000/=. There is a
supporting affidavit.
KABURU BAUNI
JUDGE
Court:I have gone through the application. It’s reasonable and not prejudicial to the respondent. The application is allowed as prayed. The cheque of shs.38,000/= be made in the name of the school – NYABURURU GIRLS’ HIGH SCHOOL.
KABURU BAUNI
JUDGE