[2017] KEHC 1804 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

SUCCESSION CAUSE NO. 1 OF 2017

IN THE MATTER OF THE ESTATE OF S M N (DECEASED)

BETWEEN

R N M…………………………….APPLICANT

AND

R M N…………………………RESPONDENT

RULING

The Application

The Applicant and Respondent are both administrators of the estate of estate of S M N (hereinafter referred to as “the Deceased”), by virtue of the grant of letters of administration intestate issued to them on 24th April, 2017. The Applicant is the wife of the deceased, while the Respondent is one of the Deceased’s children from his first marriage to the late J L W.

This Court on 24th April 2017 gave various directions after appointing the Applicant and Respondent as joint administrators of the estate of the Deceased, including that all rental income from the properties of the Deceased be deposited in a joint interest earning account opened in the name of the joint administrators, and that the Administrators were at liberty to apply as to the use and payment of the said monies so deposited to meet the estate and dependants’ expenses.

The Applicant subsequently filed a summons dated 28th June 2017 seeking the following orders:

i. That an order so issue granting the two dependants/beneficiaries of the Deceased being J L M and C N M provision for urgent school fees and other needs from the estate of the deceased.

ii. That an order do issue making monthly maintenance provision in the sum of KShs. 50,000/= to R N M, the only widow of the deceased pending confirmation of the grant.

iii. That costs of this summons be in the cause.

This Court on 26th July 2017, gave directions that the summons proceeds to hearing by way of affidavit evidence and filing of written submissions.

The summons is supported by the Applicant’s affidavit of the same date, and further affidavits filed by the Applicant on 24th July 2017 and 23rd August 2017. The Applicant’s Counsel also filed submissions on the application dated 21st August, 2017.

It is the Applicant’s case that her marriage with the Deceased was blessed with two children, J L Mu and C N M whose birth certificates she annexed. Further, that the two are beneficiaries / dependants of the Deceased and need school fees and upkeep. The Applicant annexed fee structures, payment receipts and forms from Shanghai Lixin University of Accounting and Finance and [particulars withheld] Academy to that effect. She further stated that she too needed maintenance for the reason that she is unemployed, having retired shortly after the Deceased’s death, and that she had complied with the orders of 26th April, 2017 and deposited the rental income from the deceased’s estate in a joint interest earning account.

The Applicant averred that the Respondent and her siblings are in contempt of the court’s orders, since they have not deposited the whole income from three of the deceased properties, namely M, K A and M being approximately KShs. 50,000/= per month.

The Applicant further stated that the Deceased listed her two children among his dependants, and that the children from the Deceased’s first marriage are all well-educated. She prayed for a monthly maintenance of KShs. 50,000/= and KShs. 96,000/= for the two children and herself respectively, and KShs. 317,070/= being the two children’s school fees and other needs.

The Applicant urged that she is entitled to 50 % of the estate of the deceased since it comprises of property acquired during the subsistence of her marriage to the deceased, and the remaining 50% is what is to be shared among herself and the other beneficiaries. That as a teacher, her salary also catered for the family needs thereby contributed either directly or indirectly to the acquisition of the estate. She further stated that she took care of their two children while the deceased was away from the country during the period he was Dean at the [particulars withheld] of Nairobi. In addition that she fully supported the Deceased, and that it is during the subsistence of their marriage that the deceased obtained a PHD in business administration.

It was the Applicant’s submission that in law, in any matter concerning a child, the best interest of the child is paramount. In this regard she cited Article 53 (2), Article 159 (2) (d) of the Constitution and section 4 (3) of the Children Act No. 8 of 2001. That the court in making an order for provision for a dependant has the full discretion to order a specific share of the estate to be given to the dependant or make such other provision by way of periodical payment or a lump sum and to impose such conditions as the court thinks fit. The Applicant pointed out that section 27 and 28 of the Law of Succession Act gives guidelines on the factors to be considered in making an order for provision.

The Applicant also relied on the decisions in John Gilata Mwangi & others vs Jonathan Njuguna Mwangi & Others, Nairobi Civil Appeal No. 213 of 1997, Re Estate of Mary Syokwia Kyalili, [2015] eKLR and S. J. S. & Another v. E.J.K. alias E.J.K. & Another [2013] e KLR where section 28 of the Act was employed. It was the Applicant’s submissions that the children’s birth certificates have been produced in court, and that the issue whether or not the Deceased sired the said children was not relevant. She submitted that it is an undisputed fact that the Deceased used to pay school fees for the two children.

The Response

The Respondent filed a replying affidavit on 18th July 2017 in response to the application, and her counsel also filed written submissions dated 18th September 2017. The Respondent contended that the Applicant’s application contains falsehood for the reasons that her two children were not sired by the Deceased. Further, that while the Applicant acknowledges that she got married to the Deceased in the year 2010, the birth certificates reveal that the two children were born in the year 1995 and 2000, and that it is imperative for the court to inquire from the Applicant how she got to have the Deceased’s name in the children’s birth certificates.

The Respondent further contended that there was material non-disclosure since the Applicant does not live with the said children, thereby the figure of KShs. 50,000/= sought as maintenance is an exaggeration. Further, that the Applicant has a commercial borehole in one of the estate’s property and three of the deceased’s vehicles which she does not account for, and which are sufficient to take care of her personal needs.

According to the Respondent, the Applicant has not provided any proof of compliance with the court’s orders that the deceased’s property be reverted to his names. It was also contended that the Applicant collected rent of more than 2. 4 million after the Deceased died and before the Court’s orders herein, which she has not accounted for and the same is sufficient to sustain her.

In her submissions, the Respondent argued that section 26 of the Act is only intended to be relied upon where a dependent is not provided for under will or intestacy or a combination thereof. Reliance was placed in this regard on the decision in In the matter of the Estate of Nagindas Ramji Parmar (Deceased), Nairobi High Court Succession Cause No. 2749 of 2002. It was further argued that in an application for provision, an applicant is required to demonstrate need for reasonable provision of a disinherited dependant as was held in the In Re Estate of Ashford Njuguna Nduri (Deceased), Nairobi High Court Succession Cause No. 1589 of 1994.

The Respondent also submitted that where a party avers that there exists special circumstances or urgency to warrant intervention of the court before confirmation of the grant, an applicant ought to file a petition for grant of administration ad colligenda bona defunctias provided for under rule 36 of the Probate and Administration Rules. That a party may also petition the court for special limited grant under rule 12 of the said Rules.

Further, that section 77 of the Law of Succession Act and rules 36 and 37 of the rules set out the nature of urgent matters that would warrant court’s intervention. The Respondent cited Morjaria v. Abdalla (1984) KLR 490 to illustrate the position that this is normally in cases where the assets of the estate are of a perishable or precarious nature. It was argued that it is not in the interest of justice to grant the application, as the Applicant has failed to account for the sum of over KShs. 3,000,000/= she has collected from the estate of the Deceased, and that the matter proceeds to confirmation. The Respondent also sought to distinguish the authorities cited by the Applicant.

The Issues and Determination

I have read and carefully considered the pleadings and submissions filed by the Applicant and Petitioner. The issues to be decided are firstly, whether provision should be made for the Applicant and her children from the Deceased’s estate pending confirmation of grant, and if so the terms of such provision.

On the first issue, Section 27 of the Law of Succession Act gives this court the discretion in making orders regarding dependants as follows:-

"In making provision for a dependant the court shall have complete discretion to order a specific share of the estate to be given to the dependant, or to make such other provisions for him by way of periodical payments or a lump sum, and to impose such conditions, as it thinks fit.”

Section 28 of the Act gives guidelines on which factors to consider in making the above order. It provides as follows:-

“In considering whether any order should be made under this Part, and if so what order, the court shall have regard to -

(a) the nature and amount of the deceased's property;

(b) any past, present or future capital or income from any source of the dependant;

(c) the existing and future means and needs of the dependant;

(d) whether the deceased had made any advancement or other gift to the dependant during his lifetime;

(e) the situation and circumstances of the deceased's other dependants and the beneficiaries under any will;

(f) the general circumstances of the case, including, so far as can be ascertained, the testator's reasons for not making provision for the dependant."

The Respondent has contested the averment that the Applicant’s children were dependants of the Deceased, while the Applicant relied on the birth certificates showing the Deceased as the father to the children. Section 29 of the Law of Succession defines a dependant for purposes of provision as follows:

“For the purposes of this Part, "dependant" means—

(a) the wife or wives, or former wife or wives, and the children of the deceased whether or not maintained by the deceased immediately prior to his death;

(b) such of the deceased’s parents, step-parents, grand-parents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters, and half-brothers and half-sisters, as were being maintained by the deceased immediatelyprior to his death; and

(c) where the deceased was a woman, her husband if he was being maintained by her immediately prior to the date of her death.”

Proof of dependency is thus a condition precedent to the exercise of the discretion in section 29(b) cited hereinabove. In addition, while considering the meaning of a dependant under section 29 of the Act, the court held as follows in the case of Beatrice Ciamutua Rugamba .v. Fredrick Nkari Mutegi & Others,Chuka Succ. Cause No. 12 of 2016:-

"From the foregoing, a dependent under section 29 (b) and (c) must prove that he/she was being maintained by the deceased immediately prior to his demise. It is not the mere relationship that matters, but proof of dependency."

I note in this regard that the Applicant did in her affidavits admit that the subject children were not the Deceased’s biological children, and did not provide any additional evidence of how the Deceased maintained the children, and the responsibility he undertook with respect to the said children. This Court cannot in the circumstances make any conclusive findings as to the said children’s dependency on the Deceased at this stage, which finding will have to await the confirmation proceedings.

I am nevertheless conscious of the fact that parental responsibility is shared between both parents, and as it is not disputed that the Applicant is mother to the subject children and was also a dependant of the Deceased, it is in the interests of justice that she be enabled by the estate of the Deceased to meet her share of responsibility as regards the said children.

The Applicant in this regard did provide evidence that she is no longer in formal employment. She has also demonstrated her good faith in the opening of the joint account as ordered by this Court, and the depositing of the rental income from the deceased’s estate therein.

Such provision to the Applicant will however have be ultimately taken into account in the final distribution of the estate to ensure a fair and equitable distribution to all dependants and beneficiaries, and that the other beneficiaries are not unjustifiably denied their entitlement from the estate.

This Court consequently makes the following orders, arising from the findings herein:

1. Payment of a lump sum of Kshs 350,000/= shall forthwith be made to the Applicant by the Administrators of the Deceased’s Estate from the joint account operated by the two Administrators, as provision for the Applicant’s basic needs pending confirmation of the grant issued to the Administrators, which lump sum shall be taken into account during final distribution.

2. There shall be no order as to costs.

Dated, signed and delivered in open court at Machakos this 2nd day of November 2017.

P. NYAMWEYA

JUDGE